Homelessness and evidence

Oday Yabari, R (on the application of) v The Lord Mayor and Citizens of the City of Westminster (2023) EWHC 185 (Admin)

A judicial review of what was alleged to be Westminster’s failure to meet its s.188(1) duty to secure suitable accommodation and breach of Public Sector Equality Duty. It is something of a car crash, with a long background history. The key issue turns on a) the Claimant’s refusal to provide medical evidence or contact details for treating doctors, and b) the claimant’s refusal of an offer of temporary accommodation made by Westminster. The court’s findings of fact give some indication of the history and issues.

The Claimant had a long running application for a permanent change of housing based on his medical conditions. In that application he had asserted that he needed 24 hour care and a two bedroom flat. The Defendants had medically assessed the Claimant in mid 2020 and had refused 24 hour care. The Defendants had accepted that the Claimant used a wheelchair and needed day care but had found on medical evidence that he could walk and would improve with physiotherapy. The Defendants considered that the Claimant needed a one bedroom property. Thus the parties had an issue over the extent of the Claimant’s disabilities and his prognosis and his accommodation needs.

The Claimant had a partial history of avoiding allowing the Defendants access to his GP records. He had never provided GP reports or consultants’ reports on his asserted medical conditions on the evidence before me. However the Defendants had obtained at least some of his medical records and these did not support the Claimant’s assertions. The Defendants had obtained enough in their past records to know that the Claimant was a wheelchair user due to a medical condition of some sort. What was in dispute was whether the Claimant could walk short distances (for instance between his studio room and his bathroom and use stairs). The Defendants considered he could walk and would improve with physiotherapy. On the issue of whether he was completely wheelchair-bound and unable to weight bare and needed 24 hour care including night care, the Defendants did not accept the Claimant’s assertions.

The Claimant had in the past alleged he could not speak English and later had been the translator into English for his family.

For a period of time the Claimant had been receiving State funding for 35 hours per week of care provided by carers.

The Claimant chose and moved into his flat in Park West in 2018 and this was paid by Housing Benefit. He was a wheelchair user at that time. He had lived there for 4 years.

On 10 August 2022 the Claimant made his urgent homelessness housing application on legal advice and with representation based on his previously asserted disabilities and provided no medical evidence of any diagnosis or prognosis in support of the application.

After a meeting or interview on 12^th August 2022 and being asked to provide medical evidence in that meeting he was also emailed for that information and sent forms to complete the same day. He delayed responding long past the 5 day time limit requested and when he did respond he failed to provide any GP letters; notes or records; hospital discharge summaries; consultants notes or letters all of which he had a right to access under the Data Protection Act 2018. The Claimant also specifically failed to give the names and contact details of his GP, pain management consultant, neurologist, physiotherapist, consultant orthopaedic surgeon (spinal) or his NHS number despite being asked to do so by the Defendants via the forms in the emails on 12.8.2022 and letters dated 15.8.22 and others.

The Claimant chose, despite legal advice and the clear past issues with the Defendants relating to his medical conditions, to provide no medical evidence to the Defendants of his medical conditions. The only documents evidencing his asserted symptoms which were disclosed in the judicial review claim were four reports from OTs, who are not doctors or medically qualified to diagnose medical conditions.

The Claimant ignored multiple requests for medical information and access to his GP and treating medical consultants until January 2023 when his GP’s name and address (in Shepherd’s Bush) was provided. I am not aware whether any consultants’ details have ever been provided to the Defendants.

The Defendants informed the Claimant that they had made a decision in relation to “accepting” the Claimant’s application for interim relief under S.188(1) on 26.9.2022.

On 26.9.2022 the Defendants offered to the Claimant interim temporary accommodation in the form of studio or one bed accommodation and the Claimant refused such stating that he would prefer to stay where he was and await long term council accommodation (he clearly wanted a two bed council tenancy to accommodate his night carer).

Thereafter the Defendants considered that the Claimant had chosen to be and was homeless at home for the short term and that they had discharged their duty under S.188(1).

In the judicial review claim and the urgent relief application the Claimant chose not to provide the Court with any medical evidence or medical notes from any doctors relating to his medical conditions.

The Admin Court held that:

i) The ‘reason to believe’ threshold in s.188(1) was not necessarily cleared by simple assertion, particularly where the local authority had pre-existing information and decisions as to medical conditions and need in a ‘not reasonable to remain’ application.

I consider that the Housing Act 1996 permits housing authorities to seek to understand if there is any reason to believe that there is any real potential substance in the demands and assertions made when such are in conflict with their historic files and previous decisions. Whilst the clarifications the Defendants may seek cannot be anything like as long or detailed as the full investigation (the statutory enquiries) I do not accept that a housing authority has no power to seek clarification where assertions founding a “homeless at home” application based on medical conditions contradict the authority’s previous evidence and decisions on those same conditions.

The authority was entitled to make enquiries to establish of the s.188(1) threshold was met, and to seek provision of information by the claimant.

ii) While Westminster should have informed the claimant of its decision that he was ‘homeless at home’, it was the authority’s decision, not one that required the claimant’s consent.

iii) However, the claimant’s flat was not suitable due to the fire risk

On the facts of this case in my judgment the Claimant could not be determined as safe in his flat by any reasonable housing authority due to the fire safety risk. This risk was or should have been apparent to the Defendants’ because they had accepted that the Claimant did have a level disability requiring equipment and wheelchair use and day care on their own files. No one appears to have doubted the accepted level of disability would have prevented him descending 7 flights of stairs fast, if a fire arose and the lift was not to be used. This Court was provided with no evidence to show that the Defendants had considered whether the Claimant was suitably housed at home at his 7th floor flat taking into account the fire risk. I find that the Defendants, on the balance of probabilities, failed to take into account this crucial factor.

But this had no effect in law or in fact, because the claimant had rejected the offer of suitable temporary accommodation made by Westminster on the same day of Westminster’s apparent assumption of the s.188(1) duty.

In circumstances where the Claimant was refusing to move into suitable interim accommodation it cannot be said that the Defendants were in breach of their duty to provide accommodation thereafter whatever their subsequent decision was.

iv) A duty to decide on a s.188(1) duty was not required to be on the same day as the application. However, there had been about a month delay in Westminster offering temporary accommodation after receiving the claimant’s further details (though not medical contacts), which was when the decision should have been made. That delay was unlawful.

v) Was the s.188(1) duty subsequently re-activated by the claimant requesting temporary accommodation?  No – the claimant had continued to maintain that only a two bedroom groud floor property would be accepted, not the one bed ground floor that Westminster considered to be suitable on the medical evidence that they had.

in this case if the Defendants consider that one bed (ground floor or fire safe) accommodation which is wheelchair accessible and to which his carers can reasonably be expected to travel would be suitable then that would be within the range of their discretion in my judgment. The Claimant does not agree. But the choice of number of rooms is not the Claimant’s in the circumstances of this case where he has failed to evidence reason to believe his need may be for more when the Defendants have a medical assessment to the contrary.

vi) There was no breach of PSED. Westminster had indeed focussed intensely on the claimant’s disabilities and needs, but had been blocked and frustrated by the claimant’s refusal to provide access to his treating doctors.

A declaration a to unlawfulness could have been made, but was no longer necessary. There was no basis for an injunction. The claim for both was dismissed.