Nearly Legal

SL, R (on the application of) v City of Westminster Council [2010] EWHC 3182 (Admin)

A rolled up permission and substantive judicial review hearing on the issue of whether the local authority owed a duty under s.21 National Assistance Act 1948 (as amended), with the complication that NASS had accepted a duty to accommodate in the meantime.

SL was an Iranian asylum seeker. He sought asylum on the basis that he was gay and faced persecution in Iran. His application was rejected, but he made a fresh application which is not yet determined (and the approach of UKBA may have been changed by HJ Iran v Secretary of State for the Home Department [2010] 3 WLR 386.)

In the interim SL had become homeless and a few months later was diagnosed with severe mental health problems. He was admitted to psychiatric hospital. After some time, he was assessed by a social worker from Westminster. Westminster decided no duty to accommodate SL under s.21 arose. Firstly, SL was not in need of ‘care and attention’ under s.21(1)(a), or that such support as he needed from a social worker was available whatever his accommodation arrangements. Secondly, both s.21(8) which excludes NHS care, and s.21(1A) applied. S.21(1A) provides:

“A person to whom section 115 of the Immigration and Asylum Act 1999 (Exclusion from Benefits) applies, may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely – (a) because he is destitute; or (b) because of the physical effects or anticipated physical effects of his being destitute.”

While NASS does not have to accommodate all (or indeed many) of those caught by s.21(1A), it acknowledged a duty to accommodate in this case. (The Secretary of State had been an interested party, but had been discharged earlier in the case. NASS’s position had not changed).

The Claimant maintained that the local authority owed a duty under s.21 National Assistance Act and brought a claim for judicial review shortly after the initial decision. Interim relief was granted.

By the time the claim reached hearing, the Claimant’s position was:

That the state of the authorities demonstrates that it was wrong to conclude that the claimant does not fall within section 21(1)(a) of the 1948 Act and also wrong to conclude, in consequence, that the obligation to house the claimant fell upon NASS.

The Court adopted the sequential approach set out in [2002] 1 WLR 2956. Firstly, it must be decided whether s.21(1)(a) is engaged and only then whether the exclusions in s. 21(8) and s.21(1A) apply.

However, in this case, SL’s care needs were being met by the NHS in terms of medication, therapy and occupational therapy, so care and attention was provided other than by means of accommodation:

[the Claimant] seeks to avoid this conclusion by submissions developed, first, by reference to the facts, and secondly by reference to the law. The factual submission is that, if the claimant is not accommodated by the Council, his care needs will significantly increase because he will be on the streets. Thus, whatever the position when the assessment was made, the necessary care would no longer be capable of being delivered without providing accommodation.

The principal difficulty with that submission is that, on the evidence in this case, there was no question of the claimant being homeless. NASS had accepted its responsibility to accommodate the claimant and, as the evidence suggests, were seeking to do so either within Westminster or close to it so as to avoid discontinuity in the provision of medical care. Whatever might be the legal consequences of imminent street homelessness, they do not arise on the facts of this case.[paras 17 & 18]

Further, assistance in this case was being provided outside the home, rather than care being provided in the home as in the Westminster  v NASS case.

The Claimant was infirm, but this was not enough to bring him within the exception to s.21(8) in the Westminster case, as that relied on someone first having passed the s.21(1)(a) test, which was not the case here. Care and attention was available otherwise than by accommodation. On this issue, R (Mani) v the London Borough of Lambeth [2003] EWCA Civ 836 amounted to a reformulation of the test in Westminster v NASS.

As per Lady Hale (as she was) in R (M) v Slough London Borough Council [2008] 1 WLR 1808, at para 36:

“Although M is HIV positive, his medical needs are being catered for by the National Health Service so, even if they did amount to a need for care and attention within the meaning of section 21(1)(a), he would not qualify, but, for the reasons given above, I do not think that they amount to such a need … as he does not fall within section 21(1)(a) it is unnecessary to decide whether he would be excluded by section 21(1A)”.

On the evidence in this case:

In my judgment, it would be more accurate to say that the support that the claimant needs amounts to keeping an eye on him. That is a rather different matter [to care and attention]. It imports the notion that whilst keeping an eye on him, if circumstances change, different or further interventions might become necessary. It is not, however, in my view, care and attention. On this basis also, the claimant fails to establish that he came within the criteria found in section 21(1)(a).

Permission for Judicial Review granted but claim dismissed.

Hussain v London Borough of Hounslow [2010] EW Misc 15 (CC) (01 December 2010)

Not sure why this one wasn’t written up in November. I thought we’d covered it, but apparently not. It is worth a look not just on the specific issues but as the pre-amble sets out the relevant statute and case law in some detail, including the guidance given in Holmes-Moorhouse v Richmond-upon-Thames BC [2009] UKHL 7 ; [2009] 1 WLR 413 on the approach the court should adopt in interpreting review decision letters.

This is a s.204 Housing Act 1996 appeal from Central London County Court. The appeal was from a s.202 review decision by Hounslow that Ms H was homeless, eligible but not in priority need as her medical conditions did not amount to vulnerability.

Ms H had been staying at temporary addresses, then applied to Hounslow as homeless. Initially Hounslow made inquiries into vulnerability but did not accept an application [naughty]. After solicitors got involved, Hounslow did, finally, accept an application. A couple of weeks later, the decision of not in priority need was made. On review, the review officer additionally contacted Ms H’s GP. Within a month the s.202 review decision upheld the s.184. The s.202 review letter is appended to the judgment and can be seen here. Ms H’s medical issues were: depression; gall bladder stone; high blood pressure; aches; and mobility issues, including dizziness and falling.

On appeal the grounds were:

1. The review officer didn’t apply the Pereira test in respect of Ms H’s depression.
2. A composite test for assessment of vulnerability was not applied.
3. Too strict a test was applied in relation to mobility.
4. The review officer committed a material error of fact in relation to Dr Keen’s opinion (Now Medical advice to the Authority) on depression
5. The review officer did not have regard to the risk of injury or detriment stemming from recurrent falls.
6. The review officer failed to give reasons for rejecting the GP’s opinion that Ms H was vulnerable.

Held:

On 1. Overall the review did apply the Pereira test in respect of Ms H’s depression. While it may be arguable that it would not be enough if the review had been limited to the view that depression would not “hinder you from managing your daily affairs when street homeless” (although the Court’s view was that this would be sufficient – not being hindered would mean not less able to cope than a normal person), the review had already considered the depression in earlier passages. In addition, while it was true
that:

There is no reference to depression under the heading “Composite Assessment/Comparative” (paragraphs 44 to 49). Under “Composite Assessment/Composite” at paragraph 52 is the reference of which complaint is made. This relates to one of the headings in 10.16 of the Code – each of which deals expressly with vulnerability i.e. the extent to which there is a comparatively higher risk of injury or detriment. I am satisfied that the RO did not simply ask herself the “wrong” question – whether the condition would or might deteriorate. She was, I think, considering one further aspect of the future, homeless, situation having already addressed others at paragraphs 44 to 49 (which do not address depression but do look forward to prospective homelessness and do deal with risk of injury and detriment) and having already concluded that there was no enhanced risk at paragraph 22. Other references to depression, at paragraphs 55 and 60, show the RO’s permissible and unchallenged view of the lack of severity of the depression.

Ground 1 dismissed.

On 2., whether the review applied a composite test, Ms H had argued that the review under ‘composite’ appeared to be based on para 10.16 of the code of guidance. This was wrong as 10.16 was not the composite test. Ms H was wrong on this point, para 10.16 was a sub set of 10.14, which sets out the composite requirement. While the review letter was far from clear in structure on the composite assessment. There was no clear decision after the composite section as there was after each individual problem. However, the appellant had failed to show that the composite test was not applied, even after disregarding ‘possibly self-serving’ assertions that it had been from the respondent. Ground 2 dismissed.

On 3., Ms H argued “that the RO applied too high a comparative test; being reasonably satisfied that a person would suffer injury or detriment does not require comparison with serious or complete incapacity”. The issues on conclusions on dizziness were a separate ground of appeal – see below. The reviewing officer was attempting ‘in her own way’ to describe the degree of effect of the mobility issue. There were discussions of mobility elsewhere in the review decision, mitigating would might otherwise have appeared as too high a bar, when the decision was taken as a whole ‘without lawyerly gloss’. “What the RO is saying, taken in context, is that, like normal homeless people, the Appellant was and would be able to move around and use public transport for that purpose in spite of her dizziness and proneness to falls”. Ground 3 dismissed.

On 4. Did the review officer make a material error of fact or irrational decision in view of Dr Keen’s opinion? Dr Keen had said that he did not think Ms H’s “medical issues here are disabling or prevent her from supporting herself if homeless”. The review decision stated that Dr Keen “did not feel that your depression hinders your ability to fend for yourself without injury or detriment when street homeless”. Ms H argued that this meant that the review officer misrepresented or misunderstood Dr Keen’s opinion, effectively adding ‘without injury or detriment’. Without ascribing any special status to Dr Keen’s language, or assuming he was using a shorthand as a regularly used medical advisor (who, for clarity was also the Judge’s personal GP), “it was not unreasonable for the RO to treat as implicit in his answer the absence of risk of injury or detriment”. There was in any event enough material elsewhere in the decision letter to show that a proper consideration of the depression in Pereira terms had been made. Ground 4 dismissed.

On 5.- was there attention to Ms H’s dizziness and falls, Ms H argued that her GP had “reported that the Appellant’s depression caused her to suffer dizziness which had led to recurrent falls [...] and that although the RO referred to this in the [review decision] (paragraphs 32 and 47), she did so in the context of mobility and failed to recognise it as a risk of injury or detriment”. This absence of consideration was ‘startling’ in the sense of R v Brent LBC ex p Bariise (1999) 31 HLR 50, 58, CA, suggesting the relevant matter had been ignored.While the Respondent argued that the dizziness had been taken into account in mobility and there was no medical evidence before the officer to suggest injury or detriment as a result of the falls, Ms H argued that the review officer had not pursued the issue of dizziness and reported falls with Ms H’s GP, and that relevant inquiries had not been made, particularly given the repeated references to dizziness and recurrent falls in the original s.184 decision.The review letter only mentioned ‘proneness’ to falls and did not deal with the actual, recurrent falls.

“The Appellant submitted that
i) the letter and the original decision show that the fact of recurrent falls was accepted by Ms Luty [the initial decision officer]
ii) the RO appears to have misunderstood or unconsciously misrepresented the GP’s evidence because her categorisation of the Appellant being “prone to falls” is not as serious as suffering from dizziness which led to recurrent falls. Moreover, there was no material – and therefore no factual basis – which entitled her to, in effect, discount what the GP had said
iii) the ground of appeal is that the RO failed to have proper regard to the fact that the Appellant suffered from dizziness and recurrent falls. The fact that she referred to the Appellant’s condition as being prone to falls strongly suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless.

For the Respondent it was said that, while acknowledging that neither officer had explicitly considered the risk of injury or detriment as a result of the falls, ‘prone to falls’ in the [review decision] encapsulates both the Appellant’s past history of fall(s) and the risk of future falls. One cannot be prone to falls, if one has never fallen. It was thus submitted that the suggestion for the Appellant that the wording suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless was wrong.”

Held, while the questions of dizziness and falling were addressed in the review decision in another context, there was no reference in the decision to any risk of injury or detriment arising out of dizziness leading to the risk of a fall. It was only addressed in the context of mobility. This was a startling omission in the Bariise sense. Nothing in the decision suggested a scepticism as to the dizziness and falling or its mention by the GP. As it was mentioned in relation to mobility, it was not discounted, but there was no discussion – and apparently consideration – of the physical risk from falling – either for or against Ms H.

On Ground 6, the GP’s letter stated that she was ‘fairly vulnerable’, not ‘very vulnerable. This was sufficient in itself to distinguish this case from Hall v Wandsworth LBC, Carter v Wandsworth LBC [2004] EWCA Civ 1740; [2005] 2 All ER 192; ;[2005] HLR 23 where the requirement to give reasons for rejecting an important aspect of the applicant’s case was set out.

In any event, Ms H was treated as ‘fairly vulnerable’ so the GP’s view was not rejected. Then the review letter dealt with vulnerability and the failure to refer explicitly to the GP’s opinion was not a failure giving rise to an error of law. Ground 6 dismissed.

Appeal allowed on ground 5, review decision quashed. Costs to the Appellant.

Part 1 of cases – mainly county court –  that we have missed or not heard of during 2010.

With our grateful thanks to Beatrice Prevatt of Garden Court for bringing these to our notice in her disrepair update at the HLPA conference:

Shazad v Khan. Birmingham County Court 26 August 2010

S was the tenant of a 3 bed house in which he lived with his wife and 5 children aged between 2.5 and 13 years. K was the landlord. Rent was £4200 per annum. S brought what appears to have been a counterclaim for disrepair for a period since 2005.

• 1 bedroom suffered water penetration, initially from a leaking roof, then from a blocked gutter and broken downpipe. The bedroom was unusable all year.
• 1 bedroom suffered water penetration due to defects to the chimney and was only useable during the summer
• The front door suffered from water penetration during rainfall since 2008.
• The boiler had not worked properly since 2005. It cut out unpredictably, such that heating and hot water had only been available for intermittent periods.

At trial, the DJ held this to be a serious case, particularly in view of the wholly disproportionate inconvenience and distress to the tenant’s household in comparison to the cost to rectify the defects to the landlord. Heating and hot water was a basic for life in the 21st century and their absence was unacceptable.

General damages
40% of rent in respect of the bedrooms and front door for a period of 4 years 7 months (£7700)
A separate award of £2000 per annum in respect of the intermittent heating and hot water for 4 years and 10 months (£9667. About 48% of rent)
However, the counterclaim had been limited to £15,000 so damages were capped at that amount. (The uncapped damages amount to 88% of rent for the overlapped period. Presumably the £15K was the fast track limit at the point the counterclaim was brought. Now £25K, of course.).

[NL - This is a particularly useful case in the separation of the heating and hot water issues from the other disrepair. It supports the argument that a percentage award for heating and hot water problems should be taken in addition to percentage awards for other disrepair for the affected periods, which is one that I at least have had to fight on a few occasions. The overall percentage of rent award is also at a significant level, worth using in argument by claimants.]

Ontas v Pathmeads Housing Association. Edmonton County Court 12 April 2010

O was the tenant of a 3 bedroom house for 26/03/2007 to 25/08/2008. The property was fully furnished and the rent was £255 per week, then £277 per week for 01/04/2008.

O brought a claim for:

• Defective heating and hot water for 4.5 months
• Defective windows and doors causing heat loss
• Defective conservatory roof causing damp
• Damp and missing light to downstairs WC
• Minor kitchen sink blocking
• External dilapidations
• Broken glazing for a period of 3 weeks, which had caused problems with ‘local drunks’ thinking the property was unoccupied
• Disrepair enabling access for mice leading to serious infestation.

General damages: Global award of £5000 (about 28% of rent over the whole period)
Special Damages: £315
Interest from date of issue.

[NL - it is noticeable that this is only one of two Housing Association/Council cases. Pathmeads now possibly being a repeat offender in 'fighting daft disrepair cases'. It is rare for such cases to get to trial these days - any viable case will usually be settled, at least with half decent advisors. So it is cases against dodgy private landlords that we by and large must look to for the Courts' views on quantum.]

Bernard v Meisuria. Central London County Court 22 November 2010

B was the tenant of a 5 bedroom house, with his disabled wife and 5 children. B brought a claim for:

• Rat infestation from 2005 to March 2009, when they moved out.
• Dampness to one bedroom
• Defective wiring
• Defective boiler for a briefer period

At trial and on contested evidence between the tenant’s EHO and the landlord’s pest control officer and CCTV expert, the Judge found that the rat infestation emanated from drains which were in disrepair.

Damages:
£20,000 in respect of the rat infestation, including the special damages, on the basis that a property infested with rats had little rentable value.
£1250 in respect of the other disrepair

Indemnity costs and interest on the damages and costs at 1% over minimum rate from 24/12/2007 as the tenant had beaten his Part 36 offer.

[NL - frustratingly, given that this was a pest infestation consequential to disrepair, rather than a common law nuisance claim, we don't know what the rent was here. From the Judge's reported view, it would seem that the diminuition in rent must have been very high - near 100%. But I don't think that the reported basis - the 'rentable value' of the defective property - is the correct assessment, or more generously, the correct way to describe the assessment.]

Photis v Shamas, Uddin and Shamas. Bow County Court, 3 December 2009

P was the tenant of the property. She claimed for the period March 2004 to January 2009:

• Sagging ceiling in the living room due to leak from overflow to the bath above
• Front door didn’t open or close properly during winter months
• Broken patio door
• Defective bedroom window
• Damp to one bedroom
• Rodents from adjoining property owned by the LLs.
• Special damages included damaged laptop caused by leak to living room from the bath after P had been told by the LL’s that the problem was fixed.

The CJ accepted that there was significant disrepair although the property was habitable. P had been unable to have a bath or shower due to worries about the overflow leaking. The patio door was a security risk and the front door a security and fire risk.

Damages:
20% of rent March 2004 to July 2007
25% of rent July 2007 to January 2009 (as the problems and rodent issue had worsened)

The rent was
£520 pm 03/2004 to 06/2005
£600 pm 06/2005 to 09/2006
£650 pm 09/2006 to date

General damages of £7455. Special damages of £400. Interest on general damages of £211

Smyth v Circle Anglia. Clerkenwell & Shoreditch County Court 2010 (settled)

S was the tenant of a 1 bed flat. He brought a claim for the period 30/07/2007 to 25/02/2010 for:

• Water penetration to living room from balcony above.
• Condensation dampness throughout

After 25/02/2010, S had been rehoused to enable remedial works to be carried out, including installing ventilation to bathroom and kitchen, thermal insulation to external walls, ceiling and floors.

The condensation claim was on the basis that the tenancy agreement required the landlord to keep the property in ‘good condition’.

S obtained default judgment. The LL’s application to set aside default judgment was refused on the basis that there was no explanation of the failure to file a defence or comply with the pre-action protocol. The claim was settled for damages totalling £10,000. (Over 75% of rent of £90.94 per week)

[NL- OMG. Without seeing the exact wording of the tenancy agreement it is hard to tell if it fell into the Welsh v Greenwich LBC (2001) 33 HLR 40 CA exception to the usual rule of no landlord liability for condensation. But clearly the bright spark running the claim thought that the commitment to keep the property 'in good condition' did mark a significant additional commitment over s.11 'repair', well spotted if so. I'd expect the issue to go to trial, but the tenant also got lucky in Circle Anglia's catastrophic failure to actually deal with the claim in any way! A useful reminder to claimants' advisors to always pore over the tenancy terms, even if it will be once in a blue moon...

Good to see a court imposing some sort of sanction on failure to compy with the pre-action protocol. This doesn't happen often enough - the protocol requirements are clear and there is no good reason why landlords should not comply, but they often don't in my experience. Perhaps the courts could consider some form of sanction at allocation stage, as non-compliance otherwise gets lost in the ongoing claim.]

To begin by looking backwards, the numbers for Nearly Legal in 2010 were:

• Posts: 281 (a post every 1.3 days on average)
• Average page views per day*: 613
• Busiest day for page views: 1,737 (3 November)
• Average page views per month*: 19,995
• Highest page views per month: 28,638 (This was November –  Pinnock, I think)
• Subscribers by email and RSS: 987
• Real Comments: 1,154 (thanks to all who commented)
• Most commented post: 82 comments – ‘On the Naughty Step – drop the dead donkey redux‘

( * these would both have been higher, but I messed up a detail during the change of servers in January which meant we were completely invisible to Google, Bing etc. until June when I finally worked out what I had broken. Well done me.  After June, the average page views were: per day 833 and per month 23,066).

In short, more people visited Nearly Legal more often than in 2009 and commented more frequently, despite my inadvertent efforts to wipe us off the face of the internet. This makes us happy. For a thoroughly niche and specialist law blog, we are astonished by these figures.

What makes us even more happy is that people have been good enough to send us news and transcripts of their cases as judgments were handed down and have kept us up to date on on-going appeals. And then over the course of the year, quite a few people have said very complimentary things to me in person about NL, for which thanks. It is always good to know that our efforts are of use to others – any praise is of course for the whole team.

While on thanks, a particular debt of gratitude is owed to Tessa Shepperson of landlordlaw, whose help and support in providing new server space has been invaluable for the last year and for the future. We do this for the love of it, but Tessa stepped in with material assistance when it was needed and that support has been hugely helpful.

Looking forward…

In the short term, I’ve made a couple of tweaks.

Over the last year or two, the information in the sidebars has grown. The list of links had increased, I had introduced a new larger category list and the feeds of Supreme Court judgments were added to the Admin Court and Court of Appeal. This meant that the sidebars were getting rather overloaded and unwieldy. So I’ve moved all the links to housing law sites and resources, and the other law sites, to a dedicated links page – available via the top menu. This does mean they are a click away from the main page, but something had to give…

I’ve updated some of the links. I’ve also updated and re-jigged the news feeds page, sadly dropping some sources that were moribund and others that I simply couldn’t keep successfully page-scraping for updates. (The culprits here being Garden Court Chambers housing bulletins and Arden Chambers eflashes. Everyone else can ignore the following slightly geeky rant. If anyone responsible for those pages is reading,  I had to set up scripts to parse the code of your  webpages, pull out the relevant entries, turn that into an RSS feed and then keep scanning for updates. Then the scripts broke because the coding of the pages changed or was inconstant. I set up new scripts. After a while they broke, because the page coding wasn’t constant and/or the page address changed. I just haven’t got the time to keep doing this. Can it really be so tricky to set up an RSS feed? That way we can actually send traffic to your sites as well as spreading your attributed material. Rant over)

Looking further forward, all the numbers are thoroughly depressing. At various points during 2011/12 we are promised:

• Maximum housing benefit level: £400 pw for a three bed house
• LHA set at bottom 30% of market rent range.
• Age at which HB will pay for more than a room in a shared house: 35
• ‘Affordable’ tenancies at ‘up to’ 80% of market rent and for 2 years term.
• projected loss of legal aid income to not for profits: 92%
• projected loss of legal aid income to Law Centres: 50%
• across the board reduction in fee income: 10%
• reduction in matter starts: 500,000

Still, while the future may be murky, having been a First Capital Connect commuter on the Thameslink line over the last 6 weeks, I have looked fear, doubt and uncertainty in the face far too often to be worried by a mere threat to the existence of our practice.

And for NL? Well, as long as there are still all or some of us left to do this, we’ll carry on in our own peculiar fashion. I’ve been toying with ideas with a large scale redesign and re-organisation of the blog, which may or may not happen, but otherwise, there are no plans for major changes. And thanks to Tessa, no need for paid ads, sponsorship or indeed begging. We intend to remain independent and unabashedly selfish – we will do what interests us.

Hopefully, that will continue to interest you too and you’ll all be with us into 2011 and beyond. As ever, we welcome any news on cases, including in the County Court -particularly on interesting points of law and always on assessment of quantum. And there are some cracking and important cases in the Court of Appeal and Supreme Court coming up.