20/12/2019

Second homelessness application and new facts

Bukartyk, R (on the application of) v Welwyn Hatfield Borough Council (2019) EWHC 3480 (Admin)

A judicial review of a refusal to take a second homeless application which should really be put in the ‘Councils, don’t do this’ list of things that councils shouldn’t do.

Ms B had applied to Welwyn Hatfield as homeless in March 2019. She was provided with temporary accommodation during enquiries. By a s.184 decision in July, Welwyn Hatfield found that she was homeless, but not in priority need, stating:

“You stated that you have no medical conditions, physical or psychiatric and that you are of good general health. ….
You were moved out of the shared unit [at Howlands House] due to inappropriate behaviour, giving us reason to believe that you may suffer with mental health issues. I have asked you if you have a current mental health diagnosis and you said that you do not. I then completed a referral to the mental health team for them to undertake and [sic] assessment, which you refused; again, stating that you have no mental health issues or needs.
I have asked you to evidence this through your GP, however you have failed to engage with me and have not provided me with any medical information to say that you have any medical diagnosis, physically or mentally.”

Ms B requested a review. The review decision in September 2019 upheld the decision:

“Enquiries were made with you in the course of this application, but you repeatedly stated that you did not have any mental health issues. An attempt to refer you to the mental health team was made but you refused this referral and restated that you had no mental health issues.
Whilst you have stated in your review request that you have mental health problems, no evidence has been provided….
You are 32 years old, with no medical issues and no dependents. Despite attempts to seek further medical information, you have not provided any supporting evidence and have prevented any further enquiries being made by refusing assistance or assessment…”

The temporary accommodation was terminated and Ms B ended up sofa surfing and sometimes street homeless.

On 25 September 2019, Citizens Advice emailed Welwyn, stating that she was in the process of obtaining a letter from her psychologist, and making what amounted to a second application on Ms B’s behalf. The same day Citizens Advice emailed a letter from Ms B’s Locum Speciality Doctor in Psychiatry, stating she was “currently struggling to cope with her mood and anxiety. She told me she is due to be evicted soon from her current accommodation. Further deterioration in her mental state/health can be exacerbated by psycho-social stressors.”

On 30 September Ms B’s solicitors issued her s.204 appeal. That is due to be heard in January. There was then a request for accommodation pending appeal, which enclosed the doctor’s letter and a prescription dated 1 October 2019 from the Doctor for 50 mg of Sertraline.

On 3 October, the solicitors sent a pre-action protocol letter challenging the failure to decide on accommodation pending appeal. That letter enclosed a further letter from Ms B’s psychiatric specialist to her GP, and a letter from a doctor at a psychiatric outpatient clinic.

The specialist’s letter stated:

(Ms B) is suffering from recurrent episodes of intrusive thoughts that she should kill herself. She describes having had these episodes since she was a young child, from around the age of 7. During these episodes she feels extremely low in mood and anxious.
She does not seem to be depressed, and has good levels of self-care. She reported that she has positive self-image and coping strategies that help her feel good about life. She says she is in a good mood more often than not, but struggles with these episodes of intrusive thoughts and low mood… She reported being able to maintain relationships and she denied being impulsive or engaging in any self-destructive behaviour…

Mental State Examination
She was well kempt and maintained good eye contact. Her speech was normal in tone and volume but was quite rapid. Her mood was subjectively and objectively euthymic. She experiences unwanted thoughts that she should kill herself. She has insight and says she understands life is worth living, but during her episodes of low mood she doesn’t feel like this is the case…

Risk
She has episodes of suicidal thoughts but no current plan. She had previously bought a rope but has since got rid of it. She does not drink alcohol or take drugs. Risk is low.

Impression
(Ms B) suffers from intense emotional lability, and while she is usually able to manage her daily needs, she feels unable to cope with the episodes of low mood and suicidal thoughts. She has some traits of an emotionally unstable personality disorder.

Care Plan Agreed with Patient
I have called her and recommended contacting Sunflower to arrange some therapy.
I have commenced her on Sertraline 50mg mane and given her a prescription for 28 days. Please continue to prescribe this medication to her…”

The 2 October letter from the outpatient clinic doctor:

referred to the Claimant attending a psychiatric outpatient clinic the previous day, having asked to be seen as an emergency as her mood had deteriorated. The letter referred to a distressing dream that the Claimant had mentioned in which she saw herself dead, and recorded that the Claimant experienced “fleeting suicidal thoughts but denied any active plans”. The letter concluded that “She is currently experiencing an adjustment disorder following her recent eviction. …she presents with traits of an emotionally unstable personality disorder”.

On 6 October, Welwyn replied to Citizens Advice, saying that their officer

had met the Claimant on 25 September 2019; that the Claimant had shown her the letter from Dr Okoye as well as a handwritten prescription for “antihistamine” which the Claimant had told her had been prescribed for her mental state; but stated that in (their officer’s) view, the Claimant had “not provided any evidence to substantiate any changes to her circumstances or to trigger a fresh application”.

Welwyn refused accommodation pending appeal. Ms B’s solicitors then wrote on 8 October referring to the Citizen Advice email as amounting to a fresh application. On 9 October, Welwyn’s initial resonse was “no relevant new facts that were not known about at the time we dealt with the previous application, and that any new facts presented are trivial”. This was then followed by a longer email (which is worth quoting in full):

“The outcome of our assessment is that no application has been taken because the council is satisfied that there are no relevant new facts that were not known about at the time we dealt with your previous application, or that any new facts presented are trivial”.

(After referring to the decision of the Court of appeal in the Rikha Begum case, supra, the letter continued):

“I have reached this decision because I am satisfied that the facts presented by you most recently are the same as the facts that were known to the Council at the time of your previous application and there have been no other change (sic) in your housing circumstances that would trigger a new application…

Whilst you have presented information, the mere presentation of different information is not sufficient to lead to a new application being made. This would not be the case were the information presented to be of such weight that it would trigger a duty to provide interim accommodation or if the circumstances had changed in any way. As stated above, they have not.

Having considered what has been provided, I am satisfied that the information provided does not give reason to believe that you may be in a priority need.

It would be helpful at this point to explain what has been provided and why it does not change the decision of priority need. The new information we have received is:

1) A prescription for sertraline dated 1.10.19. Sertraline is an anti-depressant and according to the advice provided on the NHS website, 50mg is the usual dose for adults. I am satisfied that this new information would not lead to a change in the decision that you are not in priority need.
2) A letter from Dr Anthony Okoye, dated 25 September 2019, stating that you are under investigation by mental health services, that you are struggling to cope with your mood and anxiety and a request for Welwyn Hatfield Borough Council to take account your mental health problems. I am satisfied that the information contained in this letter would not lead to a change in the decision that you are not in priority need.
3) A letter from Dr Anthony Okoye dated 30 September 2019. I have read the letter and I am satisfied that the information contained in this letter would not lead to a change in the decision that you are not in priority need. Important passages in this letter include ‘she does not seem to be depressed and has good levels of self-care’, ‘she reported she has …coping strategies’, ‘she is in a good mood more often than not but struggles with …low mood’, ‘she denied engaging in any self-destructive behaviour’.
4) A letter dated 2 October 2019 from Charles Watson to Dr Restell at Burvill House Surgery. I have read the letter and I am satisfied that the information contained in the letter would not lead to a change in the decision that you are not in priority need. Important passages in this letter include ‘she denied any active plans [for suicide]’, ‘she has been able to maintain her job’, ‘she appears to be cognitively intact’ and ‘risk is low [for suicide].’ …

As a result the Council is not under any duty to consider your most recent approach as a new application for housing assistance. We are therefore not obliged to make any further enquiries into your circumstances to decide the statutory tests set by the homelessness legislation. Your representatives have requested that interim accommodation be provided and this request has also been turned down.
There is no statutory right of review to this decision, and your representatives will advise as to whether there is merit in taking further action such as judicial review of this decision.”

Following urgent pre-action correspondence, Ms B issued the present judicial review.

One last detail – a weeks before the hearing Ms B entered a licence with the YMCA for a room, which was excluded from Protection from Eviction Act 1977 and subject to a review after four weeks. We’ll come back to this…

Ms B’s argument on the JR was, simply that it was irrational for the Defendant to conclude in the 9 October decision that there were no new facts, or that such facts were trivial or fanciful. Alternatively, Welwyn failed to have proper regard to the relevant medical evidence. Further, the 9 October decision only addressed whether Ms B had established priority need on the medical evidence, without conducting further inquiries.

Forgive the necessarily lengthy factual premable. It had to be gone through to make sense of the High Court’s brief, pointed, findings.

First, the court noted the leading authority on second applications, Rikha Begum v Tower Hamlets LBC (2005) 1 WLR 2103. In particular, Lord Neuberger’s guidance:

“59 First, it seems to me that it is for an applicant to identify, in the subsequent application, the facts which are said to render that application different from the earlier application. If the authority are to assess the question of whether the circumstances of the two applications are “exactly the same” by reference to the facts revealed by the document by which the subsequent one is made, then that, I think, must be the logical, indeed the inevitable, consequence. Accordingly, if no new facts are revealed in that document (or any document accompanying it or referred to in it), the authority may, indeed at least normally should, reject it as incompetent.

60 Secondly, if the subsequent application document purports to reveal new facts which are, to the authority’s knowledge, and without further investigation, not new, fanciful, or trivial then the same conclusion applies. The facts may not be new because they were known to, and taken into account by, the authority when it offered the applicant accommodation to satisfy the earlier application. It is not appropriate to expand upon what may constitute or are fanciful or trivial alleged new facts, because that must inevitably turn on the particular circumstances of the particular case.

61 Thirdly, I turn to a case where the subsequent application document appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant’s purposes on investigation. In such a case, I consider that the authority must treat the subsequent application as a valid application, because that is what it is, in light of the reasoning of the House of Lords in Fahia [1998] 1 WLR 1396. In particular, I do not consider that in such a case the authority would be entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid, even where there may be reason to suspect the accuracy of the allegations. Such an investigation would, in my view, fall foul of the manifest disapproval in Fahia of non-statutory inquiries. Even if an investigation to decide whether the application is valid is expected to be comparatively short and simple, it seems to me that it would transgress that disapproval, as well as running into the other difficulties I have referred to, based on the wording and structure of Part VII of the 1996 Act.”

It was important to note that the basis of the original review decision was that

the Claimant had asserted that she mental health problems, she had provided no evidence in support, and had refused the attempt to refer her to a mental health team. The Review Decision referred on several occasions to the absence of supporting medical evidence; and stated that the Claimant had “no medical issues”. Yet in her second application, the Claimant had provided such evidence, in the form of the prescription and the three letters referred to above.

Thus

it is in my judgment very difficult to see how the Defendant could rationally conclude that the new medical evidence disclosed no new facts, or could regard such facts as trivial or fanciful. On its face, the evidence showed that Dr Okoye, a Speciality Doctor in Psychiatry, considered the Claimant to be suffering from “intense emotional lability”; and that she had “some traits of an emotionally unstable personality disorder”. Dr Okoye had recommended therapy and had also prescribed her with 50mg Sertraline. Likewise Dr Watson, an Adult Community Mental Health Service doctor, considered the Claimant to be experiencing an adjustment disorder following her eviction, and that she presented with “traits of an emotionally unstable personality disorder”.

What was yet worse was that the 9 October decision had not addressed whether the new facts were trivial or fanciful, but had instead consistently used a test of whether they established priority need.

this approach clearly conflicts with the guidance in Rikha Begum for two related reasons. First, because it fails to analyse whether the facts were new or (if not new) trivial, contrary to the guidance in Rikha Begum at (59) – (60); and second because it focusses instead on the separate question whether those facts will establish that the Claimant was vulnerable and thus in priority need, contrary to the guidance in Rikha Beghum at (61). That latter question is one that has to be addressed when the Defendant carries out its s.184 inquiries, and not at the prior stage of deciding whether there is an effective application in the first place.

Further, the decision cherry picked parts of the doctors’ letters to pick parts favourable to Welwyn’s conclusion. This was not acceptable.

Contrary to Welwyn’s submissions, the ongoing s.204 appeal did not amount to an alternative remedy, as it would not address the new medical evidence.

Also contrary to Welwyn’s (frankly a tad desperate) submissions, the YMCA accommodation did not make the claim academic. Given the precariousness of the YMCA accommodation, which could be needed at no notice and was subject to a review in the near future, Ms B was clearly threatened with homelessness for the purposes of s.175(4) Housing Act 1996.

The decision of 9 October 2019 was quashed. Welwyn were to take the new application. No interim accomodation was ordered given the YMCA accommodation.

Comment

Why on earth did Welwyn take this to full hearing? The terms of the 9 October decision must surely have been obviously a Rhika Begum failure. What a waste of public funds.

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.

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