AB v London Borough of Barnet. County Court at Central London, 1 October 2020. HHJ Saunders (Unreported. Copy of judgment here.)
A s.204 Housing Act 1996 appeal of a review decision that an offer of accommodation in West Yorkshire was suitable in discharge of duty. The only issue on suitability was the location in West Yorkshire. The homeless appellant was a refugee who had survived torture and suffers Post Traumatic Stress disorder as a result, leaving him anxious and secluded and having regular counselling sessions.
The appellant’s household consisted of (I think) his partner and (definitely) two children. The main ground of appeal was that Barnet had failed to have regard to section 11 Children Act 2004 duties. Barnet had failed to identify the needs of the children and the benefits of a wider family support network in circumstances where the parents are inherently vulnerable and suffering from mental health issues. There was no consideration of the effect of the appellant’s disability on his parenting abilities, and Barnet had failed to regard the interests of the children as paramount.
Barnet argued that s.11 Children Act only required the council to ‘have regard’ to the interests of the children, rather than as a primary consideration, and it was for the council to decide the appropriate weight to give the duty.
The court held that Barnet had not dealt with the core issues surrounding this family.
Further, following Lady Hale and Lord Kerr’s judgments in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, Article 3(1) of the United Nations Declaration on the Rights of the Child 1959 should be applied such that a primacy of importance must be given to the best interests of a child. While not a factor of limitless importance, it must rank higher than any other.
The review decision did not consider the appellant’s mental health difficulties in terms of the loss of his support network, and:
More importantly, there is nothing within the Review Decision letter which indicates that the children’s welfare was considered as a primary consideration – in fact, the Respondent’s argued position suggests that it was considered along with many other considerations. That, in my view, and for the reasons I have set out above, is not correct.
Even if this was not correct, insufficient weight had been given to the appellant’s medical evidence.
Our thanks to Joshua Hitchens (for the appellant) for a copy of the judgment.
Khayat v Westminster City Council. County Court at Central London. 1 October 2020 (but heard on 27 August 2020). Recorder Karl King. (Unreported.)
A s.204 appeal of Westminster’s review decision upholding a finding Ms K was not in priority need.
Ms K suffered various physical and mental health conditions, including depression over a number of years, with suicidal ideation. She was living with her mother in a one bedroom flat. She was her mother’s carer – her mother suffered from multiple sclerosis, partial blindness and high blood pressure. In October 2019, Ms K lost her employment, and as a result had no respite from caring for her mother. This caused a deterioration in their relationship, and the mental health of both. The mother asked Ms K to leave. She applied to Westminster as homeless.
Westminster received material from Ms K, her GP, an assessment by a talking therapy service. There was further information from the GP provided on 19 March 2020 including Ms K’s prescription for anxiety and depressive disorder.
Westminster’s s.184 decision was that Ms K was not vulnerable, in large part because
You do not have severe and enduring mental health problems which warrant input from a secondary mental health services or admission to hospital.
And that Ms K could receive appropriate treatment regardless of her housing circumstances.
Ms K requested a review. Further material concerning her mental and physical health was sent to the review officer, including professional opinions on Ms K’s poor coping strategies with crises, and from Ms K that
I am really struggling to cope an [sic] I’m caring for my mother even more so at a time like this with the coronavirus pandemic
The review officer requested comment from Westminster’s Medical Advisor, Esther Paul.The Medical Advisor’s reply, which did not support priority need:
did not address or draw attention to that part of the GP’s report that assessed the Appellant as having become more depressed or that the Appellant felt as though she were breaking down. Nor did she address the issue of the severity of the Appellants mental health condition notwithstanding that this was how it had been characterised by the Talking Therapies Service report. The Medical Advisor did not refer to the Turning Point assessment which highlighted that the Appellants coping strategies were poor.
The review decision upheld the s.184 decision.
Ms K appealed.
The Court first found that the correct comparator for the Hotak test of vulnerability was not ‘an ordinary robust and healthy person’, but ‘the ordinary person if made homeless’.
Turning to the various grounds of appeal, the Court upheld the appeal for the following reasons:
The original decision was deficient because the Council failed to make any inquiry of the appellant’s care co-ordinator or GP as to her ability to comply with the medication regime or engage with counselling if without accommodation. Any reasonable decision maker “would have considered that it was reasonable to make further inquiries regarding the Appellants ability to comply with the treatment regime and to engage with counselling services.”
This also meant that there was a relevant flaw or deficiency in consequence of whih the original decision was unsustainable. The review offer, who had three new and key pieces of evidence on the appellant’s medical conditions, should have so found. In addition “the emergence of the Covid-19 virus with its grave implications for the population constituted a matter that had not been previously at the original decision stage.”
As such the Homelessness (Review Procedure) Regulations 2018 should have been engaged and a ‘minded to’ letter sent, giving the appellant the opportunity to make further representations on the review officer’s reasons, which in this case would have included the Medical Advisor’s comments, which included errors and omissions.
There had been no consultation between the Medical Advisor and the appellant’s GP or other practitioner. A failure to allow the appellant to comment on the Medical Advisor’s opinion, in the circumstances of this case was a serious flaw. The Medical Advisor’s opinion went to the heart of the issue to be decided, and again the Review Regulations were engaged, but had not been complied with.
Further, the original decision-maker had introduced their own medical input. The decision maker had decided that the dosage of prescription that the appellant was given was ‘a standard dose’ without making any inquiry as to the meaning or significance of the dosage.
Still further, the original decision-maker had erred in effectively requiring the appellant to have ‘a severe or enduring mental health problem which warranted input from secondary mental health services or require admission to hospital’.
the decision-maker was not merely considering whether the Appellant had an enduring mental health problem as part of a contextual evaluation. Rather the existence of such a condition was treated as a prerequisite to a finding of vulnerability. The decision-maker assessed that the Appellant did not have such an enduring mental health problem as to necessitate secondary treatment. The decision that the Appellant was not vulnerable was founded on the absence of such a severe and enduring mental health problem as the decision-maker had referred to.
And yet further (and of general application), the review decision had failed to take failed to take any account of the Covid-19 emergency pandemic or any impact upon the appellant:
The emergence of the Covid-19 virus and emergency that followed it relating to the risk of infection posed to all sections of the population and the government’s unprecedented and comprehensive response for dealing with it, coincided with the Appellants request for a review on the issue of vulnerability. The impact of the Covid-19 emergency was widespread as it generated profound and serious concern for the risks to health and the response affected every sphere of daily life. The emergency gave rise to concerns about the exceptional risks posed but especially to those that were susceptible to contracting the virus because of pre- existing medical complaints.
It is correct, as Mr Peacock points out, that the Appellants GP had provided a letter adverting to her various medical complaints but had not mentioned that the Appellant was at a higher risk of contracting the virus than an ordinary person when homeless by virtue of the effect of the Covid-19 virus. That alone did not mean that there were no other matters or sources of information, relating to or impacting the Appellants medical condition of which the reviewer should reasonably have regard. A health emergency on a pandemic scale is, in my view, one such matter. It is noteworthy that in her email sent to the Respondents Caseworker on 31 March 2020 [C46 & 47] the Appellant expressly raised as part of her circumstances the issue of her exposure to the Covid-19 virus pandemic. Whilst the Appellant was not formally assessed as being in high risk category for contacting Covid-19, the Appellant informed the Respondent that her mother was in that category and that she was fearful of being exposed herself as she would still remain the carer for her mother.
There was an unreasonable failure to give any consideration at all to the impact of the Covid-19 emergency.
Decision quashed. My thanks to Will Ford of Osbornes for details.
And finally, a note on a matter that did not proceed once it had become academic, but is perhaps a pointer for a future case.
A v Royal Borough of Kensington & Chelsea & Secretary of State for Housing, Communities and Local Government CO/3229/2020
Ms A applied to RBKC as homeless. It was accepted that she was eligible and homeless, but it was found she was not in priority need because her baby did not have leave to enter or remain in the UK, via s.185(4) Housing Act 1996, so did not count.
Ms A was born in a non EEA country. She has indefinite leave to remain in the UK. She had her child abroad, but following severe domestic violence, she returned to the UK with her child, sofa surfing till she ran out of options and applied to RBKC.
A sought a review, arguing that an application for indefinite leave had been made for her child, but this could take the Home Office a very long time to process. The decision was upheld.
Ms A sought a s.204 appeal, but the remedy sought was a declaration that the decision was discriminatory on grounds of her nationality, and was in breach of Article 14 European Convention on Human Rights, read with Article 8, or that the relevant provisions should be read down under section 3 Human Rights Act 1998 to avoid the discrimination.
The amendment made to s.185(4) by Housing and Regeneration Act 2008 s.315 only created an exception for EEA and Swiss nationals. It followed R (Morris) v. Westminster City Council  1 WLR 505 finding that the unamended version was discriminatory.
As the relief sought could only be granted by the Queen’s Bench division of the High Court, Ms A sought and was granted a transfer from the County Court to the High Court, with the Secretary of State joined as second respondent.
Before a hearing, Ms A’s child was granted indefinite leave, RBKC accepted priority need and the appeal became academic.
My thanks to Sioned Roberts of Hodge Jones & Allen for details.