high court judgment template - gardencourtchambers.co.uk · web viewthe patient’s leg symptoms...

Case No: D40CL476

IN THE COUNTY COURT AT CENTRAL LONDON

Royal Courts of JusticeThomas More Building

StrandLondon

WC2A 2LL

Date: 04/06/2018

Before :

HHJ ROBERTS - - - - - - - - - - - - - - - - - - - - -

Between :

MOHAMMAD RAUFI Appellant - and -

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF ISLINGTON

Respondent

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Mr Kevin Gannon (instructed by Osbornes Law) for the AppellantMs Catherine Rowlands (instructed by Respondent) for the Respondent

Hearing date: 22 May 2018- - - - - - - - - - - - - - - - - - - - -

Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this

Judgment and that copies of this version as handed down may be treated as authentic.

.............................

HHJ ROBERTS

HHJ ROBERTSApproved Judgment

Double-click

HHJ Roberts :

Introduction

1. This is the Appellant’s appeal against a second decision by the Respondent, dated 12 December 20171, that he does not have a priority need for accommodation.

2. I am very grateful for the skeleton arguments and oral submissions of Mr Gannon of Counsel for the Appellant and Ms Rowlands of Counsel for the Respondent.

3. There are three bundles before me:

i) A bundle for final hearing containing relevant documents;

ii) A medical records bundle;

iii) An authorities bundle.

4. The decision of 12 December 2017 followed an earlier decision of 9 August 2017 to the same effect, which was reviewed following the decision of the Court of Appeal in Panayiotou v Waltham Forest BC [2017]2.

5. The appeal is brought under section 204 of the Housing Act 1996, which provides,

Right of appeal to county court on point of law.

(1) If an applicant who has requested a review under section 202:

(a) Is dissatisfied with the decision on review,

He may appeal to the county court on any point of law arising from the decision.

(3) On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit.

Priority Need

6. Section 189 of the Housing Act 1996 provides,

1. The following have a priority need for accommodation-

…

(c) A person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside.

1 Bundle for final hearing, p. 23A-30A2 EWCA Civ 1624


Double-click

7. I was referred to the case of Hotak v Southwark LBC et al [2013]3, in which Pitchford LJ said,

39. I return to the statutory qualifying words "a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason" which, in my view, provide the answer to the issue of law we have to resolve. As Hobhouse LJ emphasised in Pereira (paragraph 16 above) these words import a requirement of cause and effect between the paragraph (c) qualifying condition (in this case mental handicap or other special reason) and a relevant vulnerability. A relevant vulnerability may include but is not limited to an inability to obtain housing unaided by the housing authority. It embraces any homelessness context in which the applicant may be less able to fend for himself so that injury or detriment may be suffered by him which would not befall the average homeless person. As the cases emphasise, the assessment process is not a purely theoretical but an intensely fact sensitive and practical one, for the purpose of identifying the priority need for allocation of resources. The decision maker will have a variety of information and opinion upon which to make the assessment. An important part of the assessment involves a judgement as to the harm or detriment which may befall the applicant once he is made homeless. If the effect of the evidence is that, by reason of the personal support of his brother, willingly given, the applicant will be no less able to fend for himself than would a man without a qualifying disability, the applicant will not have demonstrated that he is, for the purpose of paragraph (c), "vulnerable as a result of mental...handicap...or other special reason.

[…]

42. The reviewing officer is required to assess the vulnerability of the applicant as it will be when he is made homeless. The effect of a support network in the applicant's existing home is unlikely to be the same as the effect of a similar support network when the applicant is made homeless. Even if the reviewing officer is satisfied that the support network would remain in place it may not, in a situation of homelessness, be sufficient to enable the applicant to fend for himself as would the average homeless person. For example, the old age or mental ill health or physical disability of the applicant may be such that no amount of support will enable the applicant to cope with homelessness as would a robust and healthy homeless person. It seems to me that a fair evaluation of all the evidence is critical to the sustainability of the reviewing officer's decision.

3 EWCA Civ 515


Double-click

8. Hotak v Southwark LBC et al [2015]4 was appealed to the Supreme Court. Lord Neuberger said,

53. Accordingly, I consider that the approach consistently adopted by the Court of Appeal that "vulnerable" in section 189(1)(c) connotes "significantly more vulnerable than ordinarily vulnerable" as a result of being rendered homeless, is correct. But that leaves open the question of the comparator group.

[…]

58. Accordingly, I consider that, in order to decide whether an applicant falls within section 189(1)(c), an authority or reviewing officer should compare him with an ordinary person, but an ordinary person if made homeless, not an ordinary actual homeless person.

65. I agree with Lady Hale that housing authorities can only take third party support into account where they are satisfied that, as a matter of fact, the third party will provide such support on a consistent and predictable basis. In that connection, the question whether there is a legal obligation on the third party to provide the support could sometimes be relevant, in that it may be said to be intrinsically more likely that a person will continue to provide support if he or she has a legal obligation to do so. So, where an otherwise vulnerable applicant would not be vulnerable if he was receiving third party support, the question is simply one of fact: will the third party provide the support on a consistent and predictable basis?

69. Thus, the observation in the Hotak review that, because Ezatuall Hotak ‘looks after’ his brother and he would continue to do so if they were ‘street homeless’ together (see para 26 (iii) above) does not of itself mean that Sifatullah Hotak would therefore not be vulnerable. It is still incumbent on the reviewing officer to ask whether, even when looked after by his commendable brother, he would be vulnerable. […]

70. […] Accordingly, the reviewing officer must always consider very carefully whether the applicant would be vulnerable, after taking into account any support which would be available.

71. The point was very well made by Pitchford LJ in para 42 of his judgment in Hotak, where he said this (albeit that it must be corrected to allow for the fact that fending for oneself is not quite the appropriate test):

4 UKSC 30


Double-click

"Even if the reviewing officer is satisfied that the support network would remain in place it may not, in a situation of homelessness, be sufficient to enable the applicant to fend for himself as would the average homeless person. For example, the old age or mental ill-health or physical disability of the applicant may be such that no amount of support will enable the applicant to cope with homelessness as would a robust and healthy homeless person."

9. Baroness Hale said in Hotak [2015],

93. […] The person who is old, mentally disordered or disabled, or physically disabled, must as a result be more at risk of harm from being without accommodation than an ordinary person would be. This is what I understand Lord Neuberger to mean by "an ordinary person if homeless". I agree. The comparison is with ordinary people, not ordinary homeless people, still less ordinary street homeless people. And it is ordinary people generally, not ordinary people in this locality.

95. But if they are entitled to take third party support into account, it must at the very least be consistent and predictable and reasonable to expect the third party to provide it for this particular person.

10. In Panayiotou v Waltham Forest BC [2017] 27 HLR 48, the Court of Appeal considered the meaning of the word ‘significantly’:

35. One of the themes that runs through previous decisions of this court is that there must be a causal link between the particular characteristic (old age, physical disability etc) and the effect of homelessness: in other words some kind of functionality requirement. We now know that the functionality is not an ability to "fend for oneself" nor an ability "to cope with homelessness without harm". But if it is not that, what is it? The nearest that Lord Neuberger came to providing an answer was in saying that section 189 (1) (c) is concerned with:

"an applicant's vulnerability if he is not provided with accommodation." (Hotak at [37])

44. It seems reasonable to conclude, therefore, that the relevant effect of the feature in question is an impairment of a person's ability to find accommodation or, if he cannot find it, to deal with the lack of it. The impairment may be an expectation that a person's physical or mental health would deteriorate; or it may be exposure to some external risk such as the risk of exploitation by others.

64. I do not, therefore consider that Lord Neuberger can have used "significantly" in such a way as to introduce for the first


Double-click

time a quantitative threshold, particularly in the light of his warning about glossing the statute. Rather, in my opinion, he was using the adverb in a qualitative sense. In other words, the question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189 (1) (c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness. To put it another way, what Lord Neuberger must have meant was that an applicant would be vulnerable if he were at risk of more harm in a significant way. Whether the test is met in relation to any given set of facts is a question of evaluative judgment for the reviewer.

Chronology

11. The Appellant is a 37-year-old refugee from Iran, born on 31 March 1981. He was imprisoned and tortured in Iran. In April 2015 he came to the United Kingdom from Iran, fleeing persecution. In 2016 he was granted Indefinite Leave to Remain. His National Asylum Support Service (NASS) accommodation ended and he moved in to live with his brother and his brother’s family in a one-bedroomed property. On 27 January 2017 his brother asked him to leave by March 2017, which he did5.

12. The medical evidence shows that the Appellant suffers from:

i) Severe depression;

ii) Anxiety;

iii) Post-traumatic stress disorder (PTSD);

iv) Urinary incontinence;

v) Plantar fasciitis, causing pain in his feet, as a result of falanga (beating to his feet) in Iran.

vi) Limited ability to walk;

vii) Cervical pain;

viii) Low back pain;

ix) Non-alcoholic fatty liver disease.

13. By a letter to the Appellant, dated 27 February 2017, the Appellant’s brother, Ali Raufi, said6,

5 See paragraph 13 below6 Bundle for final hearing, p. 20C


Double-click

“I would just like to remind you about the notice I gave you one month ago. As I told you, the lack of space for myself and my family (my wife and my one and a half year old son) means that I can no longer support you in terms of accommodation. Therefore this is the last notice that I will give you which means that you have one month left by 27/3/2017 to find another accommodation. I apologise for any inconvenience this may cause, however this situation has made daily life for my family really difficult and I cannot support you anymore.”

14. The Department for Work and Pensions (DWP) awarded the Appellant employment and support allowance (ESA) on 22 March 2017. It was found that he qualified for the Support Group. In a letter, dated 22 March 2017, from Jobcentre Plus to the Appellant in respect of “Your claim for employment and support allowance”, it is said7,

“You meet the eligibility criteria for Support Group. This means you are not required to take part in any work-related activity, although you can volunteer by contacting a Personal Advisor.”

15. The Appellant applied to the Respondent as homeless and completed a Homeless Application Form, dated 28 March 20178.

16. The Respondent referred the Appellant for support. In an undated Floating Support Referral Form, it is said9,

“Depression, severe PTSD as a result of torture in his home country. No English.Needs support.”

17. In a report, dated 25 April 2017, for Nowmedical on behalf of the Respondent, Dr Wilson, Psychiatric Adviser, says10,

“Overall the applicant appears to have some deficits in his activities of his daily living as a result of his mental health problems but he has consistent predictable support available to him from two siblings, and I think on this basis he does not meet the threshold for being more significantly vulnerable than an ordinary person if homeless.”

18. By a letter, dated 4 May 2016, from David Urquhart, Extended Scope Physiotherapy Practitioner, he says11,

7 Bundle for final hearing, p. 26C8 Bundle for final hearing, p. 61C – 89C9 Bundle for final hearing, p. 58C10 Bundle for final hearing, p. 93C11 Medical records bundle, p. 104A


Double-click

“He has had an MRI of his lumbar spine which confirms a degenerate disc at L5/S1 with a very small annular fissure. At this level and at L4/L5, there is some facetal degenerative change as well as lateral recess narrowing where there appears to be effacement of the exiting S1 nerve roots bilaterally. The patient’s leg symptoms in the S1 nerve root distribution do seem to correlate with the symptoms of his plantar fasciitis.”

19. On 5 May 2017, the Respondent served a notice under Section 184 of the Housing Act 1996, in which the Appellant was informed that it had been decided that he did not have a priority need for housing12. By a letter dated 9 May 2017, the Appellant’s solicitors requested a review of that decision, pursuant to Section 202 of the Housing Act 199613. The Respondent provided its decision by a letter dated 9 August 201714. The Appellant requested a review. The decision letter was withdrawn in the light of the judgment in Panayiotou v LB of Waltham Forest (supra).

20. By a letter dated 9 May 2017, the Appellant’s General Practitioner, Dr K Vranakis, says15,

“Due to his back pain and neck pain, his mobility is reduced and he has difficulty walking and standing. He also finds it very hard to concentrate due to Post Traumatic Stress disorder, anxiety and depression. He has low mood and is having difficulty sleeping with constant nightmares. All of the above are affecting his quality of life.”

21. In a letter dated 9 May 2017, the Appellant’s sister, Zahra Roufi, says16,

“… When he had an interview regarding his homeless application the interviewer asks me that if I could help him sometimes, and I clearly answer that if he is so desperate and in need I might help him to the best of my ability.

But I am a career (sic), full time student and have two children which one of them is five years old. In addition to all of this due to have a difficult life and deal with lots of responsibility at the same time lately I’ve got a chest pains, heart palpitations and depression and I am under treatment now, therefore even if I want, unfortunately I cannot support him in any way due to all difficulties I have myself.

I can confirm that he shouldn’t count on me for any sorts of support and help due to my situation.”

22. In a report for Nowmedical dated 12 May 2017, Dr Brickley, Medical Adviser, says,

12 Bundle for final hearing, p. 95C – 99C13 Bundle for final hearing, p. 102C – 106C14 Bundle for final hearing, p. 202C – 209C15 Bundle for final hearing, p. 107C16 Bundle for final hearing, p. 110C


Double-click

“The applicant suffers from mental health problems described as PTSD, depression and anxiety. His depression is reported to have worsened and I note mention that he has been experiencing suicidal thoughts. However, there is nothing to suggest any current suicidal risk or intent.”

23. By a letter, dated 16 May 2017, from Luke Perkins of Take Time to Talk, St Charles Centre for Health and Wellbeing, it is said17,

“Following an assessment for Low Intensity CBT, we have made referral to Barnet crisis team due to some concerns that arose around risk of harm to yourself.

You reported having thoughts for the last 2-3 years of harming yourself. You reported that you sometimes think of jumping off of a building although thinking about your mother in these cases is enough to stop you acting on this. You reported that these thoughts have increased recently, especially since receiving the letter from the council saying they will no longer be paying for your accommodation, and you are finding it increasingly harder to think of your mother when you have those thoughts. You reported that you took an overdose 2-3 months ago which you were found by your brother and taken to the GP. You did not receive any medical or hospital treatment from this. You were unable to say how likely it was that you would harm yourself, your intention to hurt himself or if you would be able to keep yourself safe as you had ‘too much going on in your head’. I gave you the crisis phone numbers and information but you were unsure if you would use this if you needed to”.

24. On 17 May 2017 the Appellant was referred to the Brent Crisis Centre as he was at significant risk of harm.

25. By a letter dated 18 May 2017, the Appellant’s General Practitioner, Dr K Vranakis, says18,

“Diagnoses: Post-traumatic stress disorderSevere depression – suicidalNon-alcoholic fatty liverCervical back painLow back painKnee injury – recent fallUrine incontinencePlantar Fasciitis

DH: Lactulose 5ml, Biscodyl 5mgOmerprazole 20mg, Macrogol compoundGabapentin 300mg, Co-dydromol 10mgAmitrityline 25mg, Solifenacin 10mg

17 Bundle for final hearing, p. 128C – 129C18 Bundle for final hearing, p. 121C – 122C


Double-click

Sertraline100mg…2. Suicidal and recent injury, currently under investigation.

3. He is extremely traumatised due to the onset of suicidal thoughts and the most recent injury post fall. Walking is impaired due to this injury and his mental state is very unsettled, cannot sleep or concentrate and I am concerned that he may harm himself.

4. I examined the patient yesterday and he was in a terrible condition, there was no eye contact and very distracted, his clothes were very dirty, walking with a knee splint and crutches.

5. The stress of being homeless would exacerbate his current medical and physical health, as before I am extremely concerned regarding his suicidal thoughts. He is suffering very badly with the cervical and back pain. His incontinence is a serious problem as he has to pass urine frequently, this is not possible when you are homeless and his walking distance is also very limited. He is currently awaiting urological assessment.

6. Due to the numerous problems I feel the patient is more at risk than the average patient.

7. There is no doubt that homelessness would trigger an exacerbation of his current conditions, as previously mentioned, I am also extremely concerned regarding his mental health.”

26. The Appellant made further submissions in two letters dated 22 May 2017 to the Respondent19. The Appellant’s solicitor says20,

“As is clear from the enclosed notes, there has been ongoing concern regarding our client’s mental and physical health. He has missed appointments and referrals because of his depression and lack of English, and has not been able to receive full treatment because of the complexity of the range of physical and mental health problems he suffers from, for fear that (for example with incontinence pads) treatment of one problem may exacerbate another.”

27. In an email dated 22 June 2017, the Appellant’s sister, Zahra Roufi, says21,

“1. As Mohammad has lots of medical issues and language difficulty I helped him with his medical appointment,

19 Bundle for final hearing, p. 123C – 124C and 126C, at 124C20 Bundle for final hearing, p. 124C21 Bundle for final hearing, p. 139C


Double-click

interpretation and help him to settle down in this country. I also helped him to find a private rented accommodation which was unsuccessful.

2. I told them that I would do as much as I can, as I have a family responsibility and I’m living very far away from him therefore giving assistance to him is not always possible.

3. Yes this assistance has changed as I was under so much pressure as a full time student, carer and mum of two children, so as a result I experienced some medical issues and unfortunately I am unable to provide further help for him.

4. As I mentioned above due to huge amount responsibility I am also suffering from depression and anxiety in addition to heart palpitations and other physical problems, therefore I cannot provide any help for Mohammed anymore.”

28. The Appellant served a report from Dr Freedman MD FRCPsych, Consultant Psychiatrist, dated 27 June 2017. In her report, she says22,

“1. Mr Raufi suffers from posttraumatic stress disorder (PTSD) and severe depression with anxiety.

2. … His PTSD symptoms relate directly to the torture. His depression and anxiety are related to his PTSD.

3. … He has withdrawn from his relatives, as he feels that he is a burden on them. … He is on the maximum dose of Mirtazapine, an antidepressant and anti-anxiety medication.

4. … Mr Raufi suffers from severe mental and physical symptoms, which presently are aggravated by the uncertainty of his accommodation. An example of this is his urinary incontinence, which began after he was tortured. The continence advisor who sees him at his GP surgery believes that his bladder function may have been impaired as a result of his beating. She wants him to see a urologist. He has waited over a year for an appointment.

5. If Mr Raufi became street homeless, his PTSD and anxiety would result in him being frightened and on constant alert. He would not be able to sleep, and his pains would make it impossible for him to even attempt to lie down. He said that if he is made homeless, he would feel that he had nothing, and it would be better for him to die. He said that he would not tell anyone of his intentions, he would just kill himself. He thinks that he would starve himself, overdose on his tablets, and/or

22 Bundle for final hearing, p. 142C – 146C


Double-click

jump from a height. As he already hears a voice telling him to jump off an edge, he is at risk for acting on this command.

7. … Mr Raufi is significantly more vulnerable that an ordinary person made homeless. His depression renders him hopeless and unable to take initiatives that would be required to keep himself safe and functioning if he was living on the street. Instead, it is highly likely that he would give in to his preoccupation with suicide. … A further complication for him is his incontinence. He would have limited ability to keep himself clean and dry if living on the street. He would struggle to get to a toilet during the night, particularly with his impaired mobility. As he does at present when he has to go out, it is likely that he would further restrict his fluid intake, and this would cause him increased physical difficulties.

In summary, Mr Raufi suffers from a combination of physical and mental problems that an ordinary person made homeless does not experience. For him, living on the street would be a far greater challenge that it would be for an ordinary person. He is significantly more vulnerable than an ordinary person made homeless would be.”

29. In a report, dated 5 July 2017, for Nowmedical on behalf of the Respondent, Dr Wilson, Psychiatric Adviser, says23,

“I note that he has been referred by the Time to Talk service to the local crisis team due to him having a perceived high risk to himself. Additionally, I note correspondence from the applicant’s GP dated 19 May 17 stating that the applicant’s depression has worsened and that he has suicidal thoughts.

…

Based on the information submitted, I would have concerns that he may deteriorate if he does not have consistent and predictable support available to him. I would therefore remain of the view that if such support is not available, then he would meet the threshold for being vulnerable given the concerns raised regarding his depression and suicidality. I therefore recommend that the local authority investigates and confirms whether he has support available to him from his friend and whether he has adequately been able to secure accommodation. This would appear to be the key matter upon which the decision regarding vulnerability hinges.”

30. In a Housing Application Note, dated 12 July 2017, it is said24,

“Observation:

23 Bundle for final hearing, p. 180C – 181C24 Bundle for final hearing, p. 187C – 188C


Double-click

Applicant was able to get in and out of the chair himself, I also observed applicant walk from the office past Budgens Supermarket, he stopped, looked back and continued without taking a break. He continued on his journey with his travelling bag.”

31. There is a Personal Independence Payment (PIP) decision letter from a Mr Hillman, dated 27 October 2017, which states25,

“PIP is made up of two parts: help with daily living needs and help with mobility needs.”

Under the heading, “My decision”, Mr Hillman says,

“You said you have difficulty moving around. I decided you can stand and then move more than 50 metres but no more than 200 metres. This is consistent with your medical history, informal observations at your face to face consultation, how you engaged with the assessor, the available evidence, the information you provided about how your disability affects you, your mental state examination results and your musculoskeletal examination results.”

Decision letter of 12 December 2017

32. The Respondent concluded in the decision letter of 12 December 2017,

“x) I am satisfied that you are vulnerable because of your mental health issues, but I do not find you to be at risk of more harm in a significant way.

[…]aa) … You have been a victim of torture and were initially refused asylum. You are receiving treatment for your mental and physical issues that are a result of your experiences. Whilst it is clear that the threat of homelessness has exacerbated your anxiety, I am satisfied that your mental and physical health issues do not render you at risk of more harm in a significant way, and you are therefore not significantly more vulnerable.”

General Guidance

33. Mr Gannon referred me to Runa Begum v Tower Hamlets LBC [2003]26. Lord Bingham of Cornhill summarised the County Court’s jurisdiction on an appeal under section 204, saying at p 439G,

Although the county court's jurisdiction is appellate, it is in substance the same as that of the High Court in judicial review: Nipa Begum v Tower Hamlets London Borough Council [2000]

25 Bundle for final hearing, p. 217C – 220C26 2 AC 430


Double-click

1 WLR 306. Thus the court may not only quash the authority's decision under section 204(3) if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1030, per Scarman LJ) if the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact.

34. Ms Rowlands referred me to the following authorities in which guidance has been given as to the approach which should be adopted by the court when dealing with Housing Act appeals.

35. In Holmes-Moorhouse v London Borough of Richmond upon Thames [2009]27 Lord Neuberger gave the following advice,

50. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.

51. […] a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed.

36. In Rother District Council v Freeman-Roach [2018]28 the Court of Appeal said,

51. These and many other cases were reviewed by Lord Brown in South Bucks DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953. He confirmed at [29] that the burden is on the challenger to show that the decision maker made an error of law. His well-known summary of principle is at [36]. For the purposes of this case it will suffice if I only quote part of it:

27 UKHL 728 EWCA Civ 368


Double-click

Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.

52. Accordingly, in the present context it is not for the reviewing officer to demonstrate positively that he has correctly understood the law. It is for the applicant to show that he has not. The reviewing officer is not writing an examination paper in housing law. Nor is he required to expound on the finer points of a decision of the Supreme Court. In Hotak itself there was no criticism of the review decision in Mr Johnson's case where the reviewing officer had used the adverb "significantly" without further elaboration.

37. I set out below each ground of appeal and summarise the parties’ rival submissions.

Ground 1

38. The first ground of appeal is that the review decision retains an erroneous approach to the assessment of vulnerability that was evident in the decision of 9 August 2017, namely a quantative and not qualitative assessment of difference with an ordinary person.

39. Mr Gannon submits that in the decision letter of 9 August 2017, the reviewing officer applied a quantitative assessment and sought to assess whether there was a large difference between the Appellant and an ordinary person who was homeless:29

“3. … The test is whether the applicant is significantly more vulnerable than ordinarily vulnerable as a result of being rendered homeless when compared with an ordinary person if made homeless. The Court did not define ‘significantly’. The word ‘significantly’ is described in the dictionary as having a greater importance or to be worthy of greater attention or in a way that is easy to see or by a large amount.

5. … Current caselaw suggests that I should define where on a spectrum of meaning between ‘noticeable’ and ‘substantial’ I place ‘significantly’. I do not accept that ‘significantly’ can be defined simply as ‘more than trivial’; I am satisfied that its definition of greater importance can only indicate that it can be described as substantial or by a large amount.”

29 Bundle for final hearing, p. 202C – 209C, at p. 203C


Double-click

40. Mr Gannon submits that there was a significant change in the law following the decision of the Court of Appeal in Panayiotou30 in that ‘significantly more vulnerable’ required a qualitative approach and not a quantative basis. Mr Gannon summarised the difference as follows: he said the new approach was digital. Before the Court of Appeal decision in Panayioutou, the court had been adopting an analogue approach. He submits that the bulk of the review decision, dated 12 December 2017, is identical to the 9 August 2017 decision. The changes in the 12 December 2017 letter were a matter of form and there was no substantive change. The reviewing officer was still in reality applying a quantitative approach.

41. To make good this submission, Mr Gannon took me to the changes between the decision letters of 9 August 201731 and 12 December 201732:

i) Paragraph 3 of the letter of 9 August 2017 becomes,

“And taking into account the recent Court of Appeal judgment on the meaning of the word ‘significantly’ in the case of Panayiotou v London Borough of Waltham Forest. The court has held that an applicant would be vulnerable if he were at risk of more harm in a significant way. I will consider your vulnerability in the context of this case law and determine if you would be in priority need or ‘significantly’ more vulnerable than the ordinary vulnerable person facing homelessness as a result of your ailments and your situation as a whole.”

ii) Paragraph 5 of the letter of 9 August 2017 is deleted.

iii) Paragraph 7a) of the letter of 9 August 2017 says

“Dr Wilson 25/4/17: Due to experiences, developed features of PTSD and depression … but he has consistent predictable support available to him from two siblings, and I think on this basis he does not meet the threshold for being significantly more vulnerable than an ordinary person if homeless.”

In the letter of 12 December 2017 this becomes, at paragraph 6 a),

“Dr Wilson 25/4/17; Developed features of PTSD and depression due to experiences … but he has consistent predictable support available to him from two siblings, and I think on this basis he does not meet the threshold.”

iv) In the letter of 12 December 2017 at paragraph 7 b) the word “persons” is replaced by “people” and “therefore” is omitted.

v) In the letter of 12 December 2017 at paragraph 9 a) the word “also” has been deleted.

30 See paragraph 10 above.31 Bundle for final hearing, p. 204C32 Bundle for final hearing, p. 24A


Double-click

vi) In the letter of 12 December 2017 at paragraph 9 d), the phrase, “however, it is of course your prerogative” has been deleted.

vii) In the letter of 12 December 2017 at paragraph 9 g) the phrase, “whilst I have seen medical evidence that you suffered a fall” has been inserted.

viii) In the letter of 12 December 2017 at paragraph 9 i) the phrase, “You were confirmed to not be in acute mental health crisis” is replaced with, “It was confirmed that you were not in acute mental health crisis”.

ix) In the letter of 12 December 2017 at paragraph 9 j) the word, “And” is changed to, “Moreover”. Further, two sentences have been deleted: “I disagree; it is quite clear from all the information on file and your asylum application the reasons that you did not want to return to Iran. It is of course to be expected that had deportation become likely that you would be at high risk of harming yourself.”

x) In the letter of 12 December 2017 at paragraph 9 q) the phrase, “And I note” has been changed to “in addition I note”.

xi) In the letter of 12 December 2017 at paragraph 9 r) the phrase, “Any decision to not request assistance as needed cannot be deemed to be caused by your mental health” has been replaced with, “Your mental health cannot be deemed the cause of any decision to forego requesting assistance.” Further, “Allows you” has been replaced with, “Would allow you” and, “Whom you have declared you are very close to” has been replaced with, “To whom you have declared you are very close”.

xii) In the letter of 12 December 2017 at paragraph 9 t) the phrase, “To not be” has been replaced with “Not to be”. The sentence, “I have previously considered the withdrawal of support by family and am satisfied that you are able to make and attend appointments as required” has been inserted.

xiii) In the letter of 12 December 2017 at paragraph 9 u) the phrase, “it would appear that” has been inserted. Further, the phrase, “That you can be considered significantly more vulnerable as a result” has been replaced with, “That you are at risk of more harm in a significant way” and the phrase, “That you can be deemed significantly more vulnerable as a result” has been replaced with, “That you can be deemed at risk of more harm in a significant way”.

xiv) Paragraph 9 v) of the letter of 9 August 2017 has been split into two paragraphs in the letter of 12 December 2017, with paragraph 9 w) now beginning at, “I have considered the hygiene aspect of the urinary incontinence.”

xv) In the letter of 12 December 2017 at paragraph 9 w) the phrase, “In regard to” has twice been replaced with, “Concerning”. Information regarding possible NHS aids for dealing with incontinence has been inserted. “Incontinence underwear” is then replaced with, “these incontinence products”. Two additional sentences have been inserted at the end of the paragraph: “I am


Double-click

satisfied that there are solutions to lessen the impact of incontinence on you. Whilst I acknowledge the practical and social difficulties this issue raises, I do not consider that this is an issue that would cause you to be at risk of more harm in a significant way.”

xvi) In the letter of 12 December 2017 at paragraph 9 x) the phrase (in paragraph 9 w) of the earlier letter, “In regard to psychiatry” has been replaced by, “Concerning psychiatry” and, “As a result of” has twice been replaced by, “Because of”. The conclusion, “I do not find you to be significantly more vulnerable, as defined” has been replaced by, “I do not find you to be at risk of more harm in a significant way.”

xvii) In the letter of 12 December 2017 at paragraph 9 y) the word, “Tenancies” (in paragraph 9 x) of the earlier letter) has been replaced with “Accommodation”.

xviii) In the letter of 12 December 2017 at paragraph 9 aa), the phrase, “I am satisfied that your mental and physical health issues do not render you significantly more vulnerable” (at paragraph 9 z) of the earlier letter) has been replaced by, “I do not find you vulnerable because of your disability when taken alone or in conjunction with your other issues.”

42. In the review decision, dated 12 December 2017, the sentence becomes,

“Whilst you clearly do suffer from pain, I am not satisfied that you can be deemed at risk of more harm in a significant way.”

43. Mr Gannon submits that the Respondent has applied the same quantitative test in both the decision of 9 August 2017 and the decision of 12 December 2017. The substitution of phrases from Panayiotou in place of wording from Hotak has not changed the substance.

44. Ms Rowlands submits for the Respondent in her skeleton argument,

“30. … the fact that the same decision was reached in both letters does not mean that both decisions were wrong – both decisions were right, and within the range of decisions a reasonable local authority could reach. The Appellant’s conditions do not make him more vulnerable compared to an ordinary person, whether one asks whether that is a lot more vulnerable or meaningfully more vulnerable.

31. The reviewing officer carefully explains why she does not consider that the Appellant is significantly more vulnerable than the ordinary person, i.e. his ‘mental and physical health issues do not render [him] at risk of more harm in a significant way’ to quote paragraph 8(a) of the letter:

a. He has consistent support available to him: paragraph 7(a), 8 8(r); his family continued to assist him: paragraph 8(e);


Double-click

b. He has continued to attend appointments without support: paragraph 7(b);

c. He was able to mobilise and speak to people without an interpreter (paragraph 8(a));

d. He could travel to his GP despite it being some distance away: paragraph 8(c);

e. There was no medical evidence of any decline in the Appellant’s health (paragraph 8(g) or of suicidal ideation paragraph (8(h-q));

f. He had remained actively engaged with medical professionals: paragraph 8(r);

g. He would be able to secure and manage a tenancy: paragraph 8(y).”

45. Ms Rowlands submits that there can be no consideration of “significantly more vulnerable” without considering “more” as well.

Grounds 2 and 4

46. Mr Gannon dealt with Grounds 2 and 4 together in his submissions and submitted that the Respondent erred in law in finding that the Appellant was not vulnerable because he had consistent and predictable support. In support of this submission, Mr Gannon submits:

i) The Respondent’s own medical advisor, Dr Wilson, Psychiatric Adviser of Nowmedical, said in his report dated 5 July 2017, that33,

“The main change evident from when I previously commented on this case is that it is contended that the applicant’s sibling is now no longer able to provide support to the applicant.

[…] I note that he has been referred by the Time to Talk service to the local crisis team due to him having a perceived high risk to himself. Additionally, I note correspondence from the applicant’s GP dated 19 May 17 stating that the applicant’s depression has worsened and that he has suicidal thoughts.

[…] Based on the information submitted, I would have concerns that he may deteriorate if he does not have consistent and predictable support available to him. … This would appear to be the key matter upon which the decision regarding vulnerability hinges.”

ii) In the review decision, the Reviewing Officer states at paragraph 7 b),

33 Bundle for final hearing, p. 181C


Double-click

“There is no evidence on file that you are unable to cook or feed yourself and I am therefore satisfied that the loss of this support is not an issue when homeless.”

Mr Gannon submits that this is the wrong question; the question is not whether the Appellant was so affected by mental illness or physical disability that without support he could not cook or feed himself, but whether the Appellant was affected by his mental illness or physical disability in a way that was relevant to being without accommodation. As a consequence, it is argued, the Respondent made an error of law in finding the Appellant not to have a priority need.

iii) The Respondent asserted that the Appellant needed support in the referral form for floating support on 28 March 201734.

iv) An ordinary person who becomes homeless would not need the support the Appellant needs.

v) Dr Wilson, Psychiatric Adviser of Nowmedical, says in his report dated 5 July 2017, that35,

“Additionally, I note correspondence from the applicant’s GP dated 19 May 17 stating that the applicant’s depression has worsened and that he has suicidal thoughts.”

Mr Gannon contends that this description of the Appellant is within the concept of vulnerability as set out in paragraph 64 of Panayiotou and that the Respondent erred in law in finding otherwise.

vi) Mr Gannon submits that the Respondent’s own medical adviser accepted that the Appellant was vulnerable. He argues that the Respondent failed to address their own medical adviser’s concerns.

47. In reply, Ms Rowlands contends that the Appellant’s siblings have helped him and will continue to do so. She submits that they will continue to help him by translating medication information, with telephone calls, by providing a care of address and with general assistance. The Respondent has assessed how the Appellant will cope with the support from his siblings and medical services.

Ground 3

48. The Appellant submits that the Respondent erred in failing to accept that the ordinary person used in the comparative assessment for vulnerability means a person who is healthy.

49. In the decision letter, at paragraph 4, the reviewing officer states36,

34 Bundle for final hearing, p. 58C35 Bundle for final hearing, p. 180C – 181C36 Bundle for final hearing, p. 24A


Double-click

“Further, in relation to your solicitor’s reading of the Hotak judgment, at no point is it confirmed that the ordinary person when homeless is robust and healthy.”

50. Mr Gannon submits that the ordinary person is to be taken as robust and healthy. He refers to Hotak v Southwark London Borough Council [2016] at paragraph 71, where Lord Neuberger quoted with approval Pitchford LJ’s words in the Court below, where the latter made a comparison with, “the robust and healthy homeless person”. The Supreme Court in Hotak recognised that everyone is likely to suffer harm by being homeless and it is this ordinary vulnerability (of the robust and healthy person) against which the respondent must make its comparison.

51. Ms Rowlands submits that the words of Pitchford LJ at paragraph 71 of Hotak were by way of example and should not be elevated into a general rule. She argues that it cannot be said that the ordinary person is robust and healthy. It is quite ordinary for a person to be less than 100% healthy and she submits that this ground is wrong in law.

Ground 5

52. The Appellant submits that the Respondent’s approach to the issue of suicidal risk is flawed. Firstly, Mr Gannon submits that paragraph 8 h) of the decision letter37 is identical to that in the decision letter of 9 August 2017, where an expressly quantitative approach had been adopted. At paragraph 93 of Hotak Baroness Hale said,

“To answer that one needs to know what they will be vulnerable to or at risk of harm from. The obvious answer is that they must be at risk of harm from being without accommodation …”

Mr Gannon submits that an ordinary person who becomes homeless would not have: (a) the history of suicide or ideation that the Appellant has; (b) thoughts of self-harm, which the Respondent accepts the Appellant has. Applying Panayiotou, this history meant that the Appellant was more at risk of harm in a relevant way if he was without accommodation. The approach of the Respondent was wrong and the decision was therefore erroneous.

53. At paragraph 8 n) of the decision letter38 the reviewing officer says, “I am satisfied that you have no current intent or plans [to commit suicide]”. Mr Gannon submits that this does not address the test required to establish vulnerability. An ordinary person would not have the history or the risk of suicide. Further, the assessment ought to be on the basis of the appellant being without accommodation and that was not the appellant’s current situation.

54. Ms Rowlands submits that the question of whether the Appellant is more vulnerable to harm than an ordinary person requires the reviewing officer to predict the future and not record history. If there is no current risk of suicide, that cannot be said to be a reason for considering the Appellant more than ordinarily vulnerable, even if he had been in the past. She contends that the evidence was thoroughly assessed and the

37? Bundle for final hearing, p. 12A38 Bundle for final hearing, p. 27a


Double-click

support available to the Appellant is important; he will have ongoing support from medical services, friends and family.

Ground 6

55. The Appellant contends that the Respondent’s approach to incontinence is flawed. Firstly, although there are some changes in wording from the 9 August 2017 decision, the changes do not alter the substance of the Respondent’s approach, which is a quantative one. Secondly, the reviewing officer should have assessed vulnerability on the basis of the circumstances as they were. The reviewing officer accepted that the Appellant was incontinent and had not been prescribed incontinence pads as it was believed this might worsen his severe depression and anxiety. It was further accepted that the Appellant did not drink sufficiently. On the basis of those findings, the Appellant was affected by his incontinence in a relevant way that would not affect an ordinary person who became homeless. The Appellant was therefore vulnerable. Thirdly, the reviewing officer opined as to the effect of the provision of incontinence pads and/or other aids. There was no evidence before the reviewing officer of the effect which the provision of incontinence pads or other aids would have and none of this had been put to the Appellant. In any event, even with incontinence pads, the Appellant would still be vulnerable.

56. Ms Rowlands submits that the Respondent found that the Appellant can engage with medical services and there is no reason why the Appellant should not be able to work with medical services to find a solution to his incontinence. The decision was well within the range of decisions a local authority could take.

Ground 7

57. Ground 7 is a Wednesbury challenge. Mr Gannon submits that the evidence before the reviewing officer contained multiple incidences which would on a proper assessment amount to a finding of vulnerability:

i) Dr Freedman says in her report dated 27 June 2017 at paragraph 7 that living on the street would be a far greater challenge for the Appellant than it would be for an ordinary homeless person.

ii) Dr Wilson says in his report dated 5 July 2018 that he remains of the view that if consistent and predictable support is not available, the Appellant meets the threshold for being vulnerable.

iii) The Floating Support Referral form states in terms that the Appellant, “needs support”.

iv) The Appellant’s IAPT notes explain that he has anxiety in public places. He has difficulty learning English because of concentration problems.

v) The Appellant’s medical notes show that he has mental health difficulties – his GP made a referral for higher level mental health services on 13 February 2017.

vi) The reviewing officer failed to take into account the fact that on 22 March 2017, the Appellant was placed into the ‘support group’ for Employment


Double-click

Support Allowance.

vii) At paragraph 8 u) of the decision letter, the reviewing officer dismissed the Appellant’s walking difficulty on the basis that there was ‘no evidence that this is anything other than verbal statements provided by you’ but the Appellant’s award of a Personal Independence Payment includes an assessment that he could stand and then move more than 50 meters but no more than 200m.

viii) The reviewing officer’s assertions at paragraph 8 k) of the decision letter39

about the Appellant’s possible overdose misses the point in relation to an assessment of vulnerability. It is clear that on 13 February 2017, the Appellant’s GP made an urgent referral for higher level mental health services. Further, the GP sought assurances that the Appellant’s brother could keep the Appellant safe while the referral was dealt with. This evidence shows that the Appellant is affected in a relevant way that would not affect an ordinary person who becomes homeless.

58. Ms Rowlands submits that the test of vulnerability has not changed since Panayiotou; the decision in Panayiotou did no more than clarify the approach to vulnerability. There is still a quantative comparison to be made.

59. The decision letter is not irrational. It identifies many factors that demonstrate that the Appellant is no more at risk of harm than the ordinary person because:

i) The Appellant has been fending for himself;

ii) He has not deteriorated despite sofa surfing;

iii) He showed an ability to cope when interviewed;

iv) He could travel to his GP, despite it being some distance;

v) He has the support of family and friends.

60. The Respondent’s reasons for finding the Appellant was not vulnerable are not limited to medical reasons. A consultant’s report is not binding on the Respondent but provides one part of the picture. The fact that a person needs support does not mean that they are vulnerable. Although the Appellant asserted that he could not easily stand or walk, the Respondent had observed the Appellant walking and noted that he could travel to visit his GP.

Ground 8

61. In the review decision at paragraph 1040, it is said, “I am satisfied that you can be considered to have a disability due to your mental health…”.

62. The Equality Act 2010 defines disability in s 6:

(1) A person (P) has a disability if-39 Bundle for final hearing, p. 27A40 Bundle for final hearing, p. 30A


Double-click

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-do-day activities.

63. Mr Gannon submits that the ability to carry out normal day-to-day activities is relevant to being without accommodation. An ordinary person who is homeless is not a disabled person. The Appellant is affected in a way that an ordinary person would not be and is therefore vulnerable.

64. Ms Rowlands submits that the question was not whether the Appellant was disabled but whether he is vulnerable as a result of that disability. Being disabled does not automatically mean that the Appellant is vulnerable.

65. I set out below my findings in respect of the grounds of appeal.

Findings

Ground 1

66. I have borne in mind the general guidance, which I refer to at paragraphs 35 and 36 above, and in particular that a benevolent approach should be adopted to the interpretation of review decisions and that the burden of proof is upon the Appellant.

67. The first question that must be addressed is whether the Court of Appeal decision in Panayiotou changed the law as to the criterion for deciding whether an applicant was vulnerable within the meaning of section 189(1) (c) of the Housing Act 1996. Ms Rowlands contends that the test of vulnerability has not changed since Panayiotou and there is still a quantitative comparison to be made. I have no hesitation in rejecting that submission. The criterion for deciding vulnerability prior to the Court of Appeal in Panayiotou was quantitative. In Panayiotou the Court of Appeal expressly considered whether the word “significantly” introduced a quantitative threshold and rejected this41. The Court of Appeal said the word “significantly” was being used “in a qualitative sense”. A qualitative approach involves asking whether the applicant is affected by something within the Housing Act 1996 s189(1)(c) in a way that is relevant to being without accommodation, which would not apply to an ordinary person. The question to be asked is whether, when compared to an ordinary person if made homeless, the applicant, in consequence of a characteristic within section 189 (1) (c), would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness.

68. The next issue is whether the reviewing officer in her letter dated 12 December 2017 applied a quantitative approach. There can be no doubt that in the decision letter of 9 August 2017, the reviewing officer applied a quantitative approach, as can be seen from paragraph 3 of that letter. I find that in the decision letter of 12 December 2017, the reviewing officer made changes to the 9 August 2017 letter to replace a quantitative approach with a qualitative one, added a new section on incontinence aids and made improvements to the grammar and language. However, although the

41 See Panayiotou at para. 64


Double-click

reviewing officer changed the form of the letter, I find that she did not apply the new qualitative approach. By way of example, at paragraph 9 u) of the decision letter of 9 August 2017, the reviewing officer wrote, “Whilst you clearly do suffer from pain, I am not satisfied that you can be deemed at risk of more harm in a significant way”. In the review decision, dated 12 December 2017, this decision becomes, “Whilst you clearly do suffer from pain, I am not satisfied that you can be deemed significantly more vulnerable as a result”. There are no explanations why applying the new approach, the Claimant does not qualify as a person who is vulnerable as a result of his mental illness and physical disability.

69. I find that if the reviewing officer had applied a qualitative approach as required, she could only have concluded that the Appellant was in priority need as a result of his mental illness and physical disability for the reasons set out at paragraphs 70 – 91 below.

Grounds 2 and 4

70. The evidence before the reviewing officer was that the Appellant would not receive consistent and predictable third party support from his siblings. The Appellant’s brother had refused to continue housing the Appellant and said in his letter dated 27 February 2017,

“I apologise for any inconvenience this may cause, however this situation has made daily life for my family really difficult and I cannot support you anymore.”

The Appellant’s sister said in her email of 22 June 2017 that she lived very far from the Appellant and therefore giving assistance was not always possible, and she could not provide further help because she was under pressure as a full-tine student, carer and mother of two children, and that she was suffering from depression, anxiety, heart palpitations and other physical problems. Dr Freedman said in her report, dated 27 June 2017, at paragraph 3, “He has withdrawn from his relatives as he feels he is a burden”. In the light of the siblings saying that they cannot provide support because they do not have the capacity to do so, it is untenable to contend, as does the Respondent, that the Appellant is receiving and will continue to receive consistent and predictable third party support from them.

71. There was no evidence that the Appellant would receive consistent and predictable third party support from a friend or from medical services.

72. Further, and in any event, the evidence shows that the Appellant’s PTSD, severe depression, anxiety and suicidal ideation are such that no amount of support will enable him to cope with homelessness as would an ordinary person. Even with the Appellant’s present support, the evidence shows that his medical condition has deteriorated:

i) The Appellant is now on the maximum dosage of Mirtazapine, an anti-depressant and anti-anxiety medication.

ii) In about March 2017 the Appellant took an overdose42.

42 See IAPT notes – medical records bundle, B23


Double-click

iii) In her report for Nowmedical dated 12 May 2017, Dr Brickley, Medical Adviser, says that the Appellant’s depression is reported to have worsened and that he was having suicidal thoughts.

iv) On 17 May 2017 he was referred to the Brent Crisis Centre as there was a significant risk of harm.

v) On 18 May 2017, on examination by Dr Vranakis, he was “in a terrible condition, there was no eye contact and very distracted, his clothes were very dirty …”. Dr Vranakis was extremely concerned regarding the Appellant’s suicidal thoughts.

vi) Dr Wilson accepted in his report dated 5 July 2017 that if support was not available, the Appellant would meet the threshold for being vulnerable, given the concerns raised regarding his depression and suicidality.

73. Further, even when he had some support, the Appellant missed many medical appointments:

i) Bayswater Medical Centre medical notes 15 November 201643: Jan Gold says,

“I rang the surgery and spoke to one of the reception staff who says that when the referral to Urology was done in March 2016 a password was given to Mohammad to ring Urology to make an appt.

Mohammad said he never received any password; I also explained to the receptionist that Mohammad is depressed and cannot speak English and it is unlikely that he would have been able to manage this on his own.”

ii) Dr Freedman says in her report of 27 June 2017 at paragraph 444,

“The continence advisor who sees him at his GP surgery […] wants him to see a urologist. He has waited over a year for an appointment. When she last enquired about the status of his appointment, she discovered that he was given a password to ring the clinic to make an appointment. He said that he never received the password. She told the clinic receptionist that he is depressed and cannot speak English, so it is unlikely that he would have managed this task on his own. Subsequently, it seems that the appointment letters have not reached him. On two occasions, he has attended the urology clinic, but the appointments had to be cancelled because an interpreter did not arrive. […]

Whilst problems like these persist, he cannot begin to recover from his considerable mental and physical problems.

43 Medical records bundle, p. 28A44 Bundle for final hearing, p. 143C - 144C


Double-click

If he had stable accommodation, it is more likely that he would be able to receive appointments reliably and would engage with treatment for his mental and physical problems, so that he would have a reasonable chance of recovery.”

74. In light of the above, I find that it is untenable to contend that the Appellant was in receipt of predictable and consistent third party support, which prevented him from being vulnerable. Further, and in any event, the evidence shows that the Appellant’s PTSD, severe depression, anxiety and suicidal ideation are such that no amount of support will enable him to cope with homelessness as would an ordinary person. Even with the Appellant’s present support, the evidence shows that his medical condition has deteriorated.

Ground 3

75. In my judgment, the Respondent erred in finding that the ordinary person used in the comparative assessment for vulnerability did not mean a person who was robust and healthy. In the review decision, at paragraph 4, the reviewing officer states45,

“Further, in relation to your solicitor’s reading of the Hotak judgment, at no point is it confirmed that the ordinary person when homeless is robust and healthy.”

76. In Hotak v Southwark London Borough Council [2016] at paragraph 71, Lord Neuberger quoted with approval Pitchford LJ’s words in the Court below, where the latter made a comparison with, “the robust and healthy homeless person”. The Supreme Court in Hotak recognised that everyone is likely to suffer harm by being homeless and it is this ordinary vulnerability (of the robust and healthy person) against which the respondent must make its comparison. I reject Ms Rowlands’ submission that Pitchford LJ’s words were only an example. His words were a descriptor of the ordinary person.

Ground 5

77. In my judgment, the Respondent’s findings as to the Appellant’s PTSD, severe depression and suicidal ideation are untenable. The evidence is all one way that, but for the issue of support, the Appellant was vulnerable:

i) Dr Freedman says in her report, dated 27 June 2017:

“5. If Mr Raufi became street homeless, his PTSD and anxiety would result in him being frightened and on constant alert. He would not be able to sleep, and his pains would make it impossible for him to even attempt to lie down. He said that if he is made homeless, he would feel that he had nothing, and it would be better for him to die. He said that he would not tell anyone of his intentions, he would just kill himself. He thinks that he would starve himself, overdose on his tablets, and/or jump from a height. As he already hears a voice telling him to jump off an edge, he is at risk for acting on this command.

45 Bundle for final hearing, p. 24A


Double-click

7. … Mr Raufi is significantly more vulnerable that an ordinary person made homeless. His depression renders him hopeless and unable to take initiatives that would be required to keep himself safe and functioning if he was living on the street. Instead, it is highly likely that he would give in to his preoccupation with suicide.”

ii) Dr Wilson, Psychiatric Adviser for Nowmedical, says in his report, dated 5 July 2017,

“I note that he has been referred by the Time to Talk service to the local crisis team due to him having a perceived high risk to himself. Additionally, I note correspondence from the applicant’s GP dated 19 May 17 stating that the applicant’s depression has worsened and that he has suicidal thoughts.

…

Based on the information submitted, I would have concerns that he may deteriorate if he does not have consistent and predictable support available to him. I would therefore remain of the view that if such support is not available, then he would meet the threshold for being vulnerable given the concerns raised regarding his depression and suicidality.”

iii) The Respondent accepted in their decision letter of 12 December 2017 at paragraph 8) aa) that46, “it is clear that the threat of homelessness has exacerbated your anxiety”.

78. The Respondent contends in the decision letter at paragraph 8 n) that the Appellant has no current intent or plans regarding suicidal ideation. I accept Mr Gannon’s submission that that is the wrong question. The question is whether by reason of his mental illness he is significantly more vulnerable than an ordinary person who is homeless. As Baroness Hale said in Hotak at paragraph 93,

“To answer that one needs to know what they will be vulnerable to or at risk of harm from. The obvious answer is that they must be at risk of harm from being without accommodation …”

79. As to third party support, I repeat my findings under grounds 2 and 4 above.

80. As to deterioration of the Appellant’s mental and physical health, I repeat paragraphs 72 and 73 above.

81. Therefore, I allow the appeal on the grounds that the Respondent’s findings as to PTSD, depression, and suicidal ideation are untenable and the Appellant is vulnerable as a result of his mental illness.

46 Bundle for final hearing, p. 30A


Double-click

Ground 6

82. In my judgment, there is no evidence to support the Respondent’s findings as to the Appellant’s incontinence and in any event, the findings are untenable. It was common ground that the Appellant:

i) was incontinent.

ii) had not been prescribed incontinence pads.

iii) did not drink sufficiently because of his incontinence.

The Appellant’s GP, Dr Vranakis, says in his letter, dated 18 May 2017,

“His incontinence is a serious problem as he has to pass urine frequently, this is not possible when you are homeless and his walking distance is also very limited.”

Dr Freedman says in her report, dated 27 June 2017,

“A further complication for him is his incontinence. He would have limited ability to keep himself clean and dry if living on the street. He would struggle to get to a toilet during the night, particularly with his impaired mobility. As he does at present when he has to go out, it is likely that he would further restrict his fluid intake, and this would cause him increased physical difficulties.”

The only conclusion from the material before the reviewing officer was that the Appellant would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness.

83. The reviewing officer opined as to the effect of the provision of incontinence pads and/or other aids. There was no evidence of the effect which the provision of incontinence pads and/or other aids would provide and the reviewing officer should have decided the case on the evidence before her. The evidence was that of Dr Keen, medical adviser, on 5 July 2017, who says47 “He is being prescribed medication to maintain bladder stability. Pending his further hospital investigation, in the interim, the applicant may wish to discuss the standard incontinence aids for managing the problem.” Further, incontinence pads had not been prescribed because it was considered that this would further damage the Appellant’s mental health48.

84. As Mr Gannon observed, none of the reviewing officer’s opinions as to incontinence pads had been put to the Appellant or the medical experts.

85. I conclude that this appeal must be allowed on the grounds that:

i) there was no evidence to support the Respondent’s findings as to incontinence;47 Bundle for final hearing, 181C48 Medical notes, 12 December 2015 – medical records bundle, p. 16A: “Spoke with Zahra and she does not want me to order pads as she thinks it will have a negative impact on Mohammed’s emotional wellbeing.”


Double-click

ii) the Respondent’s findings were untenable.

Ground 7

86. It is common ground that to establish that the decision of the Respondent is irrational is a high burden. However, in my judgment, the Appellant has satisfied that high burden. I have found that the Respondent has applied the wrong test to the issue of vulnerability, namely a quantative approach rather than a qualitative one. I have further found that the Respondent has applied the wrong test to the comparator. The comparator is an ordinary person who is homeless, and such a person is healthy and robust.

87. Further and in any event, on a proper assessment of the evidence, the Respondent could only conclude that by reason of his mental illness and physical disability the Appellant was vulnerable for the following reasons:

i) The Respondent referred the Appellant for support and in an undated Floating Support Referral form stated that he, “Needs support”.

ii) Dr Freedman, Consultant Psychiatrist, said in her report, dated 27 June 2017 at paragraph 7,

“In summary, Mr Raufi suffers from a combination of physical and mental problems that an ordinary person made homeless does not experience. For him, living on the street would be a far greater challenge that it would be for an ordinary person. He is significantly more vulnerable than an ordinary person made homeless would be.”

Of course, the Respondent was free to reject Dr Freedman’s opinion. However, Dr Freedman’s opinion is consistent with all of the other evidence in the case. The Appellant’s General Practitioner, Dr K Vranakis, says in his letter of 18 May 2017,

“4. I examined the patient yesterday and he was in a terrible condition, there was no eye contact and very distracted, his clothes were very dirty, walking with a knee splint and crutches.

5. The stress of being homeless would exacerbate his current medical and physical health, as before I am extremely concerned regarding his suicidal thoughts. He is suffering very badly with the cervical and back pain. His incontinence is a serious problem as he has to pass urine frequently, this is not possible when you are homeless and his walking distance is also very limited. He is currently awaiting urological assessment.


Double-click

6. Due to the numerous problems I feel the patient is more at risk than the average patient.

7. There is no doubt that homelessness would trigger an exacerbation of his current conditions, as previously mentioned, I am also extremely concerned regarding his mental health.”

iii) The fact that the DWP awarded the Appellant Employment and Support Allowance on 22 March 2017 means he is not required to take part in any work-related activity. Whilst I recognise Ms Rowlands’ submission that ESA is dealing with employment and not homelessness, I accept Mr Gannon’s submission that the ESA indicates a high level of functional limitation and this was not taken into account by the reviewing officer.

iv) Ms Rowlands submitted to me in her skeleton argument at paragraph 31 e) that there was no medical evidence of any decline in the Appellant’s health. That submission is contradicted by the fact that in about March 2017 the Appellant took an overdose. On 17 May 2017 he was referred to the Brent Crisis Centre as there was a significant risk of harm. On 18 May 2017 Dr Vranakis said the Appellant was, “in a terrible condition” and he was extremely concerned regarding the Appellant’s suicidal thoughts. It is also contradicted by the medical evidence from Dr Freedman, Consultant Psychiatrist, and the Respondent’s medical expert, Dr Wilson, who says in his report, dated 5 July 2017,

“Additionally, I note correspondence from the applicant’s GP dated 19 May 17 stating that the applicant’s depression has worsened and that he has suicidal thoughts.

…

Based on the information submitted, I would have concerns that he may deteriorate if he does not have consistent and predictable support available to him. I would therefore remain of the view that if such support is not available, then he would meet the threshold for being vulnerable given the concerns raised regarding his depression and suicidality.”

v) The reviewing officer erred as to her findings as to the appellant’s walking abilities, stating in the decision letter of 12 December 201749 at paragraphs 8 u),

“Dr Vranakis’ records state that you have difficulty walking and standing, however there is no evidence that this is anything other than verbal statements provided by you.”

However, there is independent evidence from the DWP that the Appellant “can move more than 50 metres but no more than 200 metres”50. The reviewing officer goes on to

49 Bundle for final hearing, p. 29A50 Bundle for final hearing, p. 220C


Double-click

say,

“This [ability to walk] is supported by your recent visit to this office and ability to travel to your GP and hospital appointments.”

This is based on the Housing Application Note dated 12 July 201751, which says that the appellant was seen to walk from the office, past Budgens supermarket, stop, look back and continue without taking a break. However, the Housing Application Note says in terms that the Appellant stopped, does not say how far he walked before stopping or how far he walked after stopping. The Reviewing Officer does not refer to the Personal Independence Payment decision and did not consider this in reaching her conclusion rejecting the evidence on behalf of the Appellant that his walking was severely limited.

88. The reviewing officer says at paragraph 9 r) of the letter dated 12 December 201752, “There is no suggestion of thought disorder or of impairment of cognition”.

This is contradicted by frequent references to the Appellant not being able to concentrate, which is an impairment of cognition, such as:

i) IAPT notes dated 16 March 201753: “Cannot learn English – cannot concentrate” (my emphasis).

ii) Dr Vranakis’ letter dated 18 May 201754: “Mental state is very unsettled, cannot sleep or concentrate … no eye contact and very distracted” (my emphasis).

89. Further, there are references to the Appellant having thought disorders, for example in Dr Freedman’s report, dated 27 June 201755: “As he already hears a voice telling him to jump off an edge, he is at risk for acting on this command.”

90. The reviewing officer says at paragraph 8 d) of the letter dated 12 December 2017,

“I note your comment in January 2016 that you ‘can’t learn English’; however, I am also aware that it was at the time where your immigration issues were ongoing and there was a possibility of being deported to Iran.”

However, the reviewing officer has not taken into account the IAPT notes, dated 16 March 2017, which state56, “Cannot learn English – cannot concentrate” or Dr Vranakis’ letter, dated 18 May 201757, which states that, “His mental state is very unsettled, cannot sleep or concentrate”.

51 Bundle for final hearing, p. 188C52 Bundle for final hearing, page 28A53 Medical records bundle, p. 23B54 Bundle for final hearing, p. 121C55 Bundle for final hearing, p. 144C56 Medical records bundle, p. 23B57 Bundle for final hearing, p. 121C


Double-click

91. The evidence is that the Appellant would not receive predictable and consistent support.

92. In any event, his mental illness (PTSD, severe depression, anxiety and suicidal ideation) and incontinence, neck and back pain, plantar fasciitis and limited walking, are such that no amount of support would enable him to cope with homelessness as would an ordinary person who was made homeless. I repeat paragraphs 72-3 above.

Ground 8

93. It is common ground that the Appellant is disabled under Section 6 of the Equality Act 2010 due to his mental health.

94. I accept Ms Rowlands’ contention that being disabled within the meaning of Section 6 of the Equality Act 2010 does not in itself mean that the appellant is vulnerable as vulnerability is not part of the criteria under Section 6 of the Equality Act.

95. I accept this submission and reject ground 8.

Relief

96. Mr Gannon invites me to vary the decision to direct that the appellant does have a priority need for accommodation. This is opposed by Ms Rowlands. The question is: had the Respondent asked the right questions, was it more likely than not that it would have found in favour of the Applicant58? I find that had the Respondent asked the right questions, it is more likely than not that it would have found that the Appellant was in priority need.

Order

97. Accordingly I order:

(i) The Appeal of the Appellant is allowed.

(ii) The decision of the Respondent, dated 12 December 2017, is varied to conclude that the Appellant is in priority need.

(iii) The Respondent do pay the costs of the appeal on a standard basis.

Handing down of judgment

98. I shall hand judgment down on 12 June 2018 at 10 a.m. in Court 55. The parties should email me any typographical corrections to this judgment by 4 p.m. on 8 June 2018. If the parties are able to agree an order in relation to costs and neither party is seeking permission to appeal, the parties could email me a draft order for approval and sealing, and I could hand down judgment in the absence of the parties. If not, the hearing will take place on 12 June 2018. The Appellant should email the Respondent and me a draft order in word format by 8 June 2018.

58 Bond v Leicester City Council [2001] EWCA Civ 154 at para. 34.

high court judgment template - gardencourtchambers.co.uk · web viewthe patient’s leg symptoms...

Documents