Islam & Anor, R (On the Application Of) v London Borough of Haringey (2022) EWHC 3933 (Admin)

This was a judicial review of Haringey’s refusal to award Mr Islam Band A priority on its housing register, rather than Band B.

Mr I and his household were living in temporary accommodation provided by Haringey under the homeless duty. They had been there since 2016. Haringey leased the property from a private landlord on three year leases, with a 3 month break clause. The lease was last renewed in August 2022, to 2025.

Haringey’s allocation scheme gives Band A priority to homeless households in ‘severe need’, defined, so far as relevant, as

They have severe mental health problems and/or have been “sectioned” under the Mental Health Act and have been unable (or are likely to be unable) to cope with living in temporary accommodation.

It was not in issue between the parties that Mr I had severe mental health problems. Mr I’s case was Haringey’s decision that he was able to cope in temporary accommodation was flawed and so unreasonable. Three flaws were alleged:

a. dismissing Mr. Islam’s GP’s evidence, contained in a letter dated 27 April 2022, as to why the First Claimant satisfies Limb B, on the basis of an error of fact as to the basis of that letter and/or failing to take that basis into account.
b. failing to take into account that Dr Wilson of NowMedical was not the First Claimant’s treating doctor and had never met with or examined the First Claimant.
c. failing to take account of the fact that the Claimants could be moved at any time for so long as they are in temporary accommodation.

The High Court dismissed the claim.

The GP’s letters were based on an incorrect belief that Mr I was constantly having to move due to the accommodation being temporary.The most recent letter, following a letter of instruction from Mr I’s solicitors,

states that Mr. Islam “could be required to move areas quite suddenly by the council which is a natural source of anxiety for anyone who would be well and without a serious mental health condition” and that given Mr. Islam’s serious mental health condition “can only serve to cause more harm in the long term”. He said that offering a sense of permanence “would go a long way in alleviating these fears”.

However, there was no correction of the earlier mistake that Mr I was constantly having to move.

Haringey had considered the GPs records which, they found, did not show any deterioration in Mr I’s mental health. A consultant’s report mentioned a deterioration based on Mr I’s brother’s comments, not the medical records, and did not specifically relate the alleged deterioration to the temporary accommodation as opposed to other causes.

There was no mistake of fact in Haringey’s approach to these letters.

1. The starting point is that the mistake that Mr. Islam was constantly being rehoused was by Dr. Mukhtar, not by the LB of Haringey. There was no correction by him in the April letter.
1. The facts are that there was no constant rehousing of Mr. Islam. There had been no rehousing of him for five years by the time of the 2021 letters and, by 2022, Mr. Islam had been in the same property for another year, with another renewal for three years pending. It remains difficult to reconcile the fact of a constant address for so many years with Dr. Mukhtar’s latest description that it was precarious.
2. The Claimants continued to rely on all letters by Dr. Mukthar in its submissions to the LB of Haringey and the LB of Haringey was entitled to point out the significant errors of fact in the early letter(s). Further, Dr. Mukhtar refers back to an earlier letter and so continues to rely upon them.
3. The Claimants rely on Dr. Mukhtar’s instructions for the writing of the April letter, which set out that Mr. Islam had been in the property since 2016. However, the instructions do not point to errors in his earlier letters for Dr. Mukhtar to consider and reassess his conclusion.
4. The Claimants’ contention that the LB of Haringey operated under a mistake as to Dr. Mukhtar’s belief, namely that he continued to believe that Mr. Islam was constantly being rehoused, is in itself a belief of the Claimants and not an objectively verifiable fact. It is unclear what Dr. Mukhtar believed by April 2022, as he did not correct his previous mistakes and pointed to a precariousness which did not match the fact of the same address for 6 years with no change anticipated in the future. Responsibility was with the Claimants’ lawyers to clarify the housing position for Dr. Mukhtar, rather than present a worst-case scenario. It is unfortunate that this did not happen.

Further, for Haringey to take the GP’s error as to frequent rehousing into account in its decision was not an irrelevant consideration.

There is nothing irrational in the LB of Haringey referring to the initial assertion by Dr. Mukhtar that constant rehousing was the cause of a decline in Mr. Islam’s mental health when this was a wrong factual basis for the conclusion.
Dr. Mukhtar’s view that temporary accommodation would “only serve to cause more harm” lacks certainty and is open to caveats. Indeed, Dr. Wilson looks at an alternative of Mr. Islam living alone in permanent accommodation but being further away from his family as being an example of where he would be less able to cope than in temporary accommodation. This isn’t a test, as recognised by Dr. Wilson, but is a convenient way of testing Dr. Mukhtar’s broad view.

Dr. Mukhtar’s April letter conclusion also is premised on the accommodation being “precarious” rather than on a premise that it has been secure for 6 years with no change anticipated over the following 3 years.

This ground failed.

On failing to take into account that the Now Mediical report was not be a treating doctor, the Now Medical report had been produced by Dr James Wilson, a consultant psychiatrist. He did not examine Mr I but reviewed the records, finding no deterioration and no need for secondary mental health services since 2016.

This was not a case like Shala v Birmingham CC (2007) EWCA Civ 624 (our note)

this is not a case where there is an attempt by the LB of Haringey to raise Dr. Wilson’s agreement with its decision to the status of Dr. Wilson giving expert evidence of the applicant’s condition. Nor is it seriously argued by the Claimants. It is apparent on the face of the Dr. Wilson’s short opinion that Dr. Wilson evidences his opinion through reliance on documents, namely medical records, and lack of requirement for hospitalisation or detention under the Mental Health Act.

I find no error in the LB of Haringey’s approach to or application of the advice from Dr. Wilson. The local authority was expecting an additional document analysis from an advisor who was appropriately medically qualified. That is what it received. The examinations of Mr. Islam by his GP and Dr. Walters were taken into account, alongside the GP medical records. The LB of Haringey also argue that the lack of examination of Mr. Islam by Dr. Wilson would have made no material difference as it would have had no effect upon its Decision.

This ground also failed.

Finally, on the argument that Haringey had failed to take into consideration that Mr I could be moved at any time and also the break clause in the lease.

The lease hd been stable for 6 years and renewed for another 3. It had been stable. Admittedly, Haringey had not conveyed to Mr I that he would not be required to move in a week and it could be up to 9 months to rehouse even if the break clause was activated. But it was not irrational for Haringey to have taken the history and likely future of the accommodation into account.

Claim dismissed.