Ibrahim, R (On the Application Of) v Westminster City Council (2021) EWHC 2616 (Admin)

This was a judicial review of Westminster’s refusal to accept a third homelessness application from Ms Ibrahim, following a review decision upholding a decision that she was intentionally homeless, and a rejection of a second application.

Ms I was from

the Democratic Republic of Congo. She arrived in the UK in March 2014 and claimed asylum. On her unchallenged account and as recorded in the relevant interviews with the Home Office her husband had been a bodyguard for a General in the Congolese military and in August 2013 she had been raped by the General and threatened that she would be killed. Her husband and parents were later killed. Having gone into hiding she fled the country, believing her life to be under threat. Unsurprisingly these terrible events have had a serious and lasting effect on her mental health. The Claimant was granted asylum and given leave to remain in the UK.

Following grant of leave to remain in 2017, Ms I had a tenancy in Middlesborough of a one bed flat over a shop. Shortly after the start of the tenancy, a male neighbour entered her flat through the bedroom window and entered the bathroom where Ms I was naked. The neighbour was arrested but released and she saw him outside on the following day. In consequence, Ms I left the flat and went to saty with the only people she knew, a friend and his wife in London. She slept on the floor of the living room in their one bed flat. While there, she was seen by a consultant psychiatrist, Dr Kettley, whose first report of December 2017 stated:

‘In my view, I think that her mental health will deteriorate if she is returned to live in Middlesbrough, as from our interviews, it is clear that she no longer feels safe there, and that this has re-triggered her PTSD…Dora is more vulnerable than average whilst homeless and in my view, due the nature of the intrusions, and her own personal history of trauma, I think that she will not be able to return to Middlesbrough’.

In February 2018, it became impossible for Ms I to remain at her friend’s flat. Ms I made an application to Westminster as homeless, and there was a further report from Dr Kettley, which stated:

‘She has an established diagnosis of PTSD and depression. Her PTSD has worsened in the last 6 months following the incidents of harassment and invasion of her property by a man whilst living in Middlesbrough. This reminded her so greatly of her original trauma in Congo that she was unable to stay in her new flat and fled to London to stay on the floor of the only other person that she knew in the UK.’

Westminster put Ms I in temporary accommodation, but in August 2018 made a s.184 decision that Ms I was homeless, eligible and in priority need, but intentionally homeless from the Middlesborough flat.

The decision letter (and this is really bad), stated ‘The police advised you had previously had good relations with this neighbour and he had previously been allowed to enter your home without permission. He had on the last occasion entered your home in order to return your kettle’.

This was apparently based on a conversation with the Middlesborough police in which they had said that this was the neighbour’s account, but did not say that they had accepted that account as true.

Ms I sought a review, and the point was made that Ms I denied the supposed police account of relations with her neighbour. In November 2018, the review decision upheld the s.184 decision, stating

‘The Police advised that Ms Ibrahim and her neighbour were on good relations and that he had visited her on several occasions. They stated that the incident was just a misunderstanding’. (…) ‘I do agree that the police are subjective and that they are entitled to their own version of events. Additionally, I also do acknowledge that Ms Ibrahim’s account of events may be equally reliable as the Police’s. However, as stated above in determining the risk of violence, we are entitled to have regard to objective facts. Ms Ibrahim also did not raise any issues of concern regarding her neighbour with her landlord or the Police after the incident had occurred.’

Ms I was referred to a solicitor for an appeal, but the documents were not received in time for an appeal to be made.

In January 2019, Ms I made a fresh application to Westminster as homeless. By August 2019, this was supported by a further report from Dr Kettley, which

confirmed that she continued to suffer from PTSD; and had had a period of stability in late 2018 and early 2019. However, since learning that she needed to move on from her safe housing provided as interim accommodation, there had been an ‘intense return’ of her PTSD symptoms, in particular more intense nightmares and flashbacks. Dr Ketteley concluded that the Claimant ‘remains more vulnerable than the average homeless person due to her experience of mental illness. In my opinion, it would be significantly detrimental for her to be forced to return to Middlesbrough, and I am sure she would elect not to go. This action would be likely to increase her suicidal risk. If she were accommodated in Westminster, due her past history prior to her trauma being relatively stable, I think it is likely that she will engage well with learning opportunities and employment and may make a good recovery.’ Further details of her treatment were provided by letter dated 13.9.19 from a GP at the same Medical Centre.

By a decision letter of January 2020, Westminster rejected the application on the basis that there had been no change in the facts of the case and no supervening accommodation.

Ms I instructed solicitors, Haris Ali Solicitors, to request a review of this decision. Also in February 2020, Ms I obtained a further report from Dr Ketteley.

“This stated that the news of her impending eviction had caused her mood to deteriorate and that there had been a ‘re-emergence of suicidal thinking’. The report continued: ‘I think that the impending eviction is having an understandable negative impact on Dora’s fragile mental health. I am concerned that she is being considered intentionally homeless from Middlesborough, as in light of her personal history of trauma it is obvious that she could not have remained in the property in Middlesborough and that having had to move once already due to racist attitudes, and then to have her private space intruded it is obvious that with her heightened experience of trauma and distress that she responded by fleeing from the area. I think that the question of intentionality could be challenged based on her own stress system and personal story, and that the option to flee may have been the only option available to her – and may well have been mediated by her stress system rather than it being a cognitive choice. I continue to recommend that the severity of her personal trauma, and her sense of shame and worthlessness are significant contributors to her poor mental health and that they make her more vulnerable than average when it comes to her housing. I would urge a reconsideration of the finding that she was intentionally homeless. She has not yet had a re-emergence of her severe depression with psychosis, but I anticipate that this may be a significant risk if she were to return to being street homeless’.”

The report was delivered to Westminster’s office by Ms I and a copy taken. Westminster accepted that a copy had been received, but also that it did not reach Ms I’s housing file. A copy was sent to her solicitors. The review decision did not reference Dr Kettely’s report of February 2020, which apparently had not been seen by the review officer.

Sadly, Ms I’s solicitors did not make further submissions in response to two ‘minded to’ notices from Westminster. Westminster’s review decision of August 2020 upheld the decision, but was not received by Ms I for some weeks (the day before the appeal deadline), when it was attached to an email from Haris Ali solicitors, which informed her they were closing their housing department. After attempting to find help in various quarters, Ms I instructed Osbornes.

Westminster was requested to either withdraw the decision and make a fresh review decision, to include consideration of the February 2020 report and other submissions, or to take a fresh homelessness application in view of that material. Dr Ketteley’s February report related “to the question of whether it was reasonable for the Claimant to continue to occupy the accommodation in Middlesbrough”. Westminster refused to do either, maintaining there had not been any change in the facts in the case.

Ms I issued the present judicial review claim.

On three grounds advanced, the claim succeeded on the challenge to Westminster’s refusal to accept a fresh application:

First, I do not accept Mr Peacock’s submission that a new application is dependent on the occurrence of a new fact or circumstance or event which postdates the original decision. In my judgment the reasoning of the House of Lords in Fahia (R v Harrow LBC, ex p Fahia(1998) 1 WLR 1396, HL) provides no basis for that contention, nor did the Court of Appeal in Begum (R. v. Borough of Tower Hamlets, ex p. Begum (2005) EWCA Civ 340) so find. I do not accept that the effect of Fahia was simply to remove the word ‘material’ from the previously understood test of ‘change of material circumstances’; that the ratio of Begum is confined to (46); or that its use of the phrase ‘compare the circumstances’ has that effect. Whilst no doubt it will typically be the case that the new fact or circumstance postdates the original decision, I can see neither authority or reason to exclude a relevant new fact or circumstance which does not postdate the original decision; not least, as here, where the relevant material has been supplied to the authority but by some error has not been placed before the review officer. On a proper reading of Fahia and Begum, there simply has to be a comparison between the facts and circumstances known to the authority at the date of the original decision and those identified in the purported new application.

Secondly, I do not accept that this construction is undermined by the proper concern that the local housing authority must be protected against applicants who seek to secure permanent temporary accommodation by a continuing cycle of repetitious applications supported by additional pieces of evidence. In such cases, the authority would be entitled to reject such applications as abusive. In the present case there is no question of any abuse of the system by this Claimant.

Thirdly, I do not accept that the failure of those advising and assisting the Claimant to identify and make submissions to the authority on the issue of subjective reasonableness should be a bar in the present case. I consider that this was an obvious point for the authority to consider as part of its duty of enquiry and in the light of the evidence supplied; and notwithstanding that the point was also repeatedly missed by those advising the Claimant. Everyday experience demonstrates that the obvious is missed from time to time. As Mr Peacock rightly acknowledges. the decision in Adesotu does not hold that an applicant for judicial review of a decision on homelessness is in all circumstances unable to advance an argument that was not raised before the authority. The issue in that case was very different.

In my judgment the history of this application as it applies to the ingredient of whether it would have been reasonable for the Claimant to continue to occupy the accommodation demonstrated an undue and exclusive focus on (i) the nature of the facilities provided by the accommodation and its affordability and (ii) the specific statutory factor in s.177 concerning potential domestic or other violence against the applicant. By contrast, no consideration was given to the evidence of the Claimant’s history of trauma and associated mental state as bore directly on the issue of whether it was reasonable for her to continue to occupy the accommodation in Middlesborough. On the most benevolent interpretation, the review decision cannot be read as if that point was implicitly considered and rejected. Whilst I have considerable sympathy for hard-pressed review officers in situations where submissions have been sought but not provided, in my judgment this was a case where the point stood out for consideration in any event.

Fourthly, the failure to consider that issue is highly material to the question of whether or not the new application is based on identical facts to those which were the subject of the review decision of 28.8.80. The significance of facts depends on the purpose for which they are considered. True it is that the material before the review officer included Dr Ketteley’s report of 6.2.18 and its statement that the incidents in Middlesbrough ‘…reminded her so greatly of her original trauma in Congo that she was unable to stay in her flat.’ However the review officer did not consider that evidence as it related to the issue of ‘subjective reasonableness’. It formed no part of the reasoning and decision; and accordingly should be disregarded when the comparison is made between the original and the ‘new’ application.

Fifthly, and in any event, I agree with Mr Fitzpatrick that Dr Ketteley’s updated report of 11.2.20 made the point in terms of particular clarity and force. Indeed its language goes beyond the terms of the report of 6.2.18, in that it is clearly expressed as an opinion, in strong terms, linking the triggering of the personal history of trauma so that ‘that she could not have remained in the property in Middlesbrough’.

Sixthly, as to the test for intervention by the Court, I proceed on the basis that it is necessary to establish conventional grounds for judicial review, but that this is easier to satisfy in the case of a decision such as this which depends on a comparison of the facts and circumstances in the original decision and the subsequent application. In my judgment it is clear that no reasonable authority could have concluded that this was not a new application.

Ground 2 & 3 – that the refusal to withdraw the decision and make a new one was irrational or an unreasonable exercise of discretion – did not succeed. While a refusal to carry out a non-statutory review was in principle justiciable, it would only be in a very exceptional case. In most cases, the ability to seek permission to for a s.204 appeal out of time would be the remedy.

Ground 4 – breach of Public Sector Equality Duty – also did not succeed as a separate ground.

In my judgment, the PSED did as a matter of substance require each of the relevant decision-makers to maintain a sharp focus on the Claimant’s mental health and consequent protected characteristic of disability as it affected the question of whether it would have been reasonable for her to remain at the accommodation; and in particular on the sub-issue of subjective reasonableness.

For essentially the same reasons as have led to my conclusion that this was an obvious matter to consider at each stage, I conclude that there was a breach of PSED in this respect; and notwithstanding that the point was not expressly raised in submissions by or on behalf of the Claimant.

However in my judgment this takes the claim no further. As I have held under ground 1, the Claimant has in any event presented a new application under Part VII which the Defendant must consider. As I have held under grounds 2 and 3, breach of PSED is a point to raise on appeal and provides no independent reason for the Court to grant relief in respect of the refusal to undertake an extra-statutory further review.

Comment

This is potentially a very useful decision on ‘new facts’ for the purposes of a fresh homelessness application potentially predating a previous decision if they have not been considered in that decision.

It is also a depressing example of the homeless decision makers simply failing to get to grips with ‘subjective reasonableness’ of not remaining in accommodation..