Ivory, R (On the Application Of) v Welwyn Hatfield Borough Council (2025) EWCA Civ 21

A second appeal to the Court of Appeal from a judicial review of Welwyn Hatfield’s rejection of a homelessness application by Ms Ivory, on the basis that it was based on the same facts as a previous application by Ms Ivory on which Welwyn had decided no full housing duty was owed as Ms Ivory was intentionally homeless.

In her first application, Ms I had said that the reason she had lost her last settled accommodation, from which she had been evicted for rent arrears, was because she had had a mental breakdown and was unable to manage her tenancy at the time. This was rejected by Welwyn on review and an appeal failed in August 2023.

On her second application, Ms I provided an expert report of Dr Okon Rocha, consultant psychiatrist, who had interviewed Ms Ivory on 14 April 2023 for 100 minutes, and her medical records. The report said that, on the balance of probabilities, Ms Ivory suffered from severe depressive disorder and panic disorder in late 2015 and 2016, and did not have capacity to keep her tenancy during that time.

Welwyn’s officer then sought to put a series of questions to Dr Okon Rocha, asking on what basis she had come to her findings. The Doctor’s office asked for a payment for her time in responding, which Welwyn refused.  Welwyn asked Ms I’s solicitors to pay, which they pointed out was outside of legal aid, and Welwyn then refused to accept answers to their questions from Ms I’s solicitors.

Welwyn’s officer then rejected Ms I’s application, stating

“There is nothing of substance provided in the report other than an opinion expressed by someone who after speaking to you believes your version of events. This is an opinion given 8 years after the fact. They did not meet you at the time, did not have any information informing them that was not already considered, and was not provided with any of the opposing views that had formed the previous decision.
… There is no evidence at all supporting the statement that you had a mental breakdown and that this was the cause of your eviction. I have found that the reason that there is no evidence is that it did not happen. I have considered the information in your medical file, and it contains no evidence of a mental breakdown.
I have asked the report author to clarify the basis for their findings, but they have declined to do so. When asked by your representatives to assist with obtaining further information from the report author, they declined to do so.
When asked why a report was commissioned in March/April 2023 but not presented as part of the appeal process in the months leading up to August 2023, no response was given.
Having considered everything provided, I am not satisfied there are any new facts, but a repeat of the submissions made during the review period, only this time from a different person. I have addressed those submissions in the review process, there is nothing new here.”

Ms I brought a judicial review of the rejection, which was refused permission, then appealed to the Court of Appeal.

The Court of Appeal held:

A council was entitled to and indeed should reject a second homelessness application if it was based on facts which are, to the authority’s knowledge, and without further investigation, not new, or are fanciful or trivial.

However, that was not the case here.

New facts fell to be compared with the facts as they were found to be on the previous application – ie, as determined by the council on the first application.

The issue was facts, not evidence. But where the application simply repeats earlier, rejected allegations of fact, but without new evidence ‘of any significance at all’, that can be rejected by the council.

On this case

I do not consider that Dr Okon-Rocha’s report of itself represents a new “fact” such as would require the authority to entertain Ms Ivory’s new application. As I see it, the report provides evidence of certain facts (in particular, that in 2015-2016 Ms Ivory “did not have the capacity to keep her tenancy on account of her mental disorders”), but does not itself represent a relevant “fact”.

On the other hand, it seems to me that the report must be considered to contain new facts. Mr Trewick explained in the review decision of 27 January 2023 that he did not accept that Ms Ivory had suffered a mental breakdown. In contrast, Dr Okon-Rocha concluded that Ms Ivory had suffered from mental disorders which meant that she had lacked the capacity to keep her tenancy. When, therefore, the facts alleged in the context of Ms Ivory’s new application are compared with those found in the review decision, it is plain that they are not identical.

Nor can there be any question of the allegations of mental disorder on which Ms Ivory is relying being disregarded as “fanciful” or “trivial”. It is true that, as Mr Trewick pointed out in the review decision, Dr Okon-Rocha had no contact with Ms Ivory until some years after the eviction from 21 Holliers Way. It is also the case that Dr Okon-Rocha drew on materials which Mr Trewick had considered when rejecting Ms Ivory’s previous application. The fact remains, however, that the present application is supported by expert evidence from a consultant psychiatrist who, moreover, based her conclusions on a lengthy interview with Ms Ivory as well as pre-existing documentation. While, therefore, this is not the first time that Ms Ivory has claimed to have suffered a mental breakdown, there is fresh evidence which cannot be dismissed as without significance.

Further, the council’s officer had had regard to an irrelevant consideration in making the decision. A council is not 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” (Neuberger LJ in Rikha Begum v Tower Hamlets London Borough Council (2005) EWCA Civ 340. But that was what the council’s officer had done.

In my view, Mr Trewick was not entitled to proceed as he did. He had to consider whether there was a “new fact” by reference to what was said in Dr Okon-Rocha’s report. Had he obtained answers to the questions he asked in his email of 5 September 2023, they might have been relevant to what was termed “Stage 2” by Lewison LJ in Minott. However, the questions were not appropriate at “Stage 1”, and neither any responses nor the absence of one could be relevant to whether there was a “new fact”.

In the event, there can be no question of Mr Trewick having erroneously taken account of any answer to his queries since none was given. Mr Trewick does, however, appear to have had regard to the absence of responses. As mentioned in paragraph 15 above, Mr Trewick stated in his letter of 25 September 2023:
“I have asked the report author to clarify the basis for their findings, but they have declined to do so. When asked by your representatives to assist with obtaining further information from the report author, they declined to do so.”

In the circumstances, it seems to me that Mr Trewick had regard to an irrelevant consideration when making his decision.

And finally, it was not an abuse of process to raise the expert report on the second application but not in the s.204 appeal of the first application. Bubb v Wandsworth London Borough Council (2011) EWCA Civ 1285 did suggest that in exceptional situations, new evidence could be introduced in s.204 appeals, but it was wholly reasonable of Ms I’s solicitors to have taken the view that the report was not relevant to the appeal because it post-dated the s.202 review decision.

The appeal was allowed and the judicial review claim well founded. The decision to reject the second application was quashed. A different officer should make decisions in the future.

There is a difference in approach by LJ Newey and LJ Males in separate judgments, though not in result. The overall position is summarised by LJ Phillips as a further application must be accepted if

(i) it is based on a factual assertion which has not previously been made and which is not trivial or fanciful; or (ii) it adduces significant fresh evidence in support of a previously made factual assertion, whether or not rejected. That appears to be an appropriately straightforward test for a housing authority to apply.