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Cite as: [2000] EWHC Admin 285

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QUEEN v. LONDON BOROUGH of NEWHAM EX PARTE ANTHONY LUMLEY [2000] EWHC Admin 285 (28th January, 2000)


Case No: CO/4390/99
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 28th January 2000
B e f o r e :
LORD JUSTICE BROOKE

THE QUEEN


- and -



LONDON BOROUGH of NEWHAM
EX PARTE
ANTHONY LUMLEY

Respondent
Applicant


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Stephen Knafler (instructed by the Aina Khan Partnership for the Applicant)
Steven Woolf (instructed by the Legal Department, Newham LBC, for the Respondent)

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Judgment
As Approved by the Court
Crown Copyright ©


Friday, 28 January 2000
JUDGMENT


LORD JUSTICE BROOKE:
1. This is an application by Anthony Lumley for judicial review of a failure by the London Borough of Newham ("Newham") from 1st November 1999 onwards to exercise its discretion whether or not to secure that accommodation continued to be available for his occupation pending a determination on a review of its decision on 1st November to the effect that it was not satisfied that he was in priority need of housing as a homeless person. He also challenges a substantive decision by Newham on 8th November declining to provide him with accommodation pending the review.
2. The application raises an interesting point on the way in which a local housing authority should consider how it should exercise its discretion pursuant to Section 188(3) of the Housing Act 1996 ("the 1996 Act") to continue to secure that accommodation is available for an applicant's occupation pending a decision on such a review.
3. The facts, so far as they were known to Newham in the first week of November, can be simply told.
4. On 29th September 1999 Mr Lumley, who was a 22-year old single man, made a formal homelessness application to Newham. On the same day Newham received by fax a letter from his solicitors. This set out the following facts:
(1) Mr Lumley had been of no fixed abode since February 1999 when he was living with his partner at an address at East Ham;
(2) The reason why he separated from his partner was because he had a mental breakdown in February 1999;
(3) He had been on anti-depressants and tranquillisers since that time and had been referred in recent days to seek psychiatric help;
(4) He was unable to move into his parent's house due to family problems, which related to his being unable to get on with his stepfather;
(5) Since February 1999 he had been living with friends, and since the previous weekend he had been on the streets because he simply had nowhere else to reside;
(6) He had a previous history of committing suicide (sic) and had also considered this in the past few weeks.
5. The solicitors expressed the view that Mr Lumley was at risk to himself and was vulnerable, as that term is used in the 1996 Act. They said he should be accommodated within Newham, since he had a support network, his mother lived in the borough, he would be close enough to his GP, and he was due to attend an outpatients' clinic for his mental state, presumably at the East Ham Memorial Hospital. They asked that temporary accommodation could be provided for him that day in view of his mental state and the fact that he was currently sleeping on the streets.
6. On receipt of the application form Newham's homelessness adviser wrote on page 3 of the form that Mr Lumley was believed to be in priority need because he was possibly vulnerable. He was provided with temporary accommodation pending the council's decision on his application. This provision was made pursuant to Section 188(1) of the 1996 Act which is in these terms:
"(1) if the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part."
7. He went back to see his solicitors and told them that although he was being accommodated temporarily at a bed and breakfast establishment in Limehouse he had been told that the council did not consider that he was in priority need and that it was unlikely that this accommodation would continue. This information prompted his solicitors to write again to Newham rather more fully on 30th September.
8. They started their letter by explaining that Mr Lumley had taken Newham's medical questionnaire to his GP that morning, but had found that he was on leave, so that he would be unable to see him until 4th October.
9. They reiterated their view that he was in priority need due to his vulnerability. They now added that he had been the victim of abuse and was potentially at risk of being pressurised into prostitution.
10. They explained that because of his suicidal thoughts he had admitted himself to Newham General Hospital with a view to being referred to a psychiatric clinic, but had been told that any referral had to be through his GP. He had hitherto been embarrassed to speak to his GP about some of his problems, but felt that he had little choice now but to seek his guidance. He was therefore due to see his GP on 4th October.
11. The solicitors now gave rather more details of Mr Lumley's past history. He had left home when he was 16, and had not been able to return due to the tension in his house between him and his stepfather. Over the past five years he had simply been of no fixed abode and had never lived more than a month or so at any particular place.
12. He had found it very difficult to cope with his sexuality and the fact that he had nowhere to live. A lot of his acquaintances were in the prostitution environment, and as he had barely enough money from welfare benefits to support himself, he felt he was being pressurised into prostitution. He did have some friends who were not into prostitution, but sadly they were few. He was currently homeless, and was in effect living day by day not knowing where he would be and where he would sleep. This was further exhibited by his behaviour over the weekend of 25-26 September when he simply slept on the stairs of a council tower block.
13. The solicitors were relying, in support of their contention that their client had a priority need for accommodation, on Section 189(1)(c) of the 1996 Act which refers to "a person who is vulnerable as a result of ... mental illness or handicap ... or other special reason...".
14. On 5th October Mr Lumley called again at the Homelessness Unit, bringing with him the Medical Questionnaire signed by his GP. This stated, so far as is relevant, that he had been diagnosed as suffering from a bereavement reaction which had lasted nine months and depression which had lasted six months. A brief clinical history recorded that he was suffering from depression following the death of his best friend, and that he had "fallen out with his parents, lost his job etc". He was taking Prozac and Thioridazine daily. In his doctor's opinion Mr Lumley's main illness was severe. He was unable to comment at present whether he expected his patient's condition to improve.
15. The homelessness caseworker sent this Questionnaire and the solicitor's letter to the council's Medical Assessment Officer, Dr Sohail, who is apparently not qualified in psychiatry (see p 223 of bundle). Dr Sohail did not see Mr Lumley or make any inquiries of his own. Instead, he completed the tick-box form he had been sent, and sent it back the same day (the October). So far as is material, he expressed the view that he did not regard Mr Lumley as being vulnerable under the terms of the homelessness legislation. He added the comment that although he was not vulnerable on medical grounds according to the attached information, there were some social and other reasons stated by the solicitors.
16. The homelessness caseworker derived from Dr Sohail's report the information that Mr Lumley was not medically vulnerable. In view of Dr Sohail's final comments, however, he was referred to Thandi Savanhu, one of Newham's housing liaison officers. The history Mr Lumley gave her did not entirely square with the information he had given his solicitors or the information he was subsequently to give a consultant psychiatrist. Nevertheless, it painted an uncomfortable picture. She finished her report, which is dated 27th October, in these terms:
"Tony said he was sixteen years old when his mother threw him out of the house, this according to his account, is the reason why he went to live with the man who brutally, physically and verbally abused him. During this period he remained in the relationship because he had nowhere else to live. The present homelessness might drive him into another abusive relationship.
Another worrying issue is that he keeps on hinting that he would be better off dead, because then he would have no worries about where he was going to sleep or where his next meal would come from.
He said he had a Housing Association shared flat three years ago, which he left because his flatmates robbed him of his possessions when he went away on vacation. He was there for only two months.
If re-housing is considered as an option for him, maybe he would be better off in his own self-contained accommodation. He has unresolved problems about his sexuality and he says he hates being gay. I think he needs space and time to help him resolve his fundamental problems. Tony is not known to social services, although he had been referred to other agencies for counselling."
17. During the body of the report Ms Savanhu repeated some of the information contained in the solicitors' letters which related to "severe depression", a "mental breakdown" and attempted suicide (an overdose of paracetamol pills now ascribed to problems with his ex-partner in 1997). Mr Lumley had told her that he had had a very violent sexual relationship with this man, who used to beat him up during the four years they lived together. He also told her that he had vivid memories of very brutal scenes in which his stepfather used to beat up his mother and threatened to stab her with a knife. He believed that the same person who abused his brother could have abused him as a child.
18. To complete the history, Newham also received a short letter from his GP dated 21st October 1999. This added nothing of significance to the information he had already supplied on the Medical Questionnaire.
19. On 29th October Newham recorded its Priority Need decision in Mr Lumley's case file. It reads:
"Mr Lumley is 22 yrs. Receiving Job Seekers Allowance. Assessed by DMA as not medically vulnerable. Claims to suffer from depression and attempted suicide in 1997. He said he is gay. He had private and public rented tenancies in the past which he left because he did not get on with flatmates. Mr L is not receiving any treatment (psychiatrist) apart from Prozac prescribed by his GP. Based on the facts above I do not consider Mr Lumley vulnerable."
20. On 1st November the Casework Officer entered the "final decision" on page 27 of Mr Lumley's Homelessness Application Form. Against the entries "Eligible", "homeless", "intentionally" and "local connection" are written the words "not concluded". Against the entry "priority" appear the words "No. Non-priority".
21. On the same day Newham communicated its decision to Mr Lumley. What happened next is under challenge in these proceedings. In a brief letter Mr Lumley was told that the authority was not satisfied that he was in priority need. Its reasons for this decision were expressed to be that he was not a person who was vulnerable as a result of old age, mental illness, physical disability or with whom such a person resided or might reasonably be expected to reside or for any other reason under Part VII of the 1996 Housing Act. He was told that his case was therefore closed and that his last night at bed and breakfast accommodation would be 7th November 1999. He was also told that he had a right to request a review of this decision. A copy of this letter was also sent to his solicitors. On 2nd November they requested a review, and asked that the council should continue to accommodate Mr Lumley pending what they described as his appeal. The council's failure to respond to this request by exercising its discretion in Mr Lumley's favour (or at all) is the first matter that is challenged.
22. Two days later they wrote a further letter to Newham. In addition to challenging the council's substantive decision that he was not in priority need, they also challenged the period for which he had been given notice to secure his own accommodation. They maintained that Newham had a duty in public law to behave reasonably, and that the five days' notice he had been given was particularly unreasonable. The council could not realistically have supposed that a man who had mental health problems, no income, save for welfare benefits, and no capital could possibly arrange accommodation for himself within such a short time.
23. They concluded their letter by threatening proceedings for judicial review if the council was unwilling to tell them by 4pm that day that they would continue to provide accommodation for their client pending the review. They added that they were in the process of instructing a psychiatric consultant. They maintained that the council had wholly failed to take into account the exercise of its discretion under Section 188 of the 1996 Act.
24. In the absence of a reply they lodged Form 86A with the Crown Office on Friday 5th November. Owen J adjourned their application for an interim injunction until 8th November on Newham's undertaking to continue to accommodate Mr Lumley in the meantime.
25. On the morning of Monday 8th November 1999 Mr Clark, who is Newham's Appeals Officer, replied to the solicitors' letter. He said he would be reviewing the extent of the duty owed to Mr Lumley under the Act. He was of the view that the period of notice given to an applicant who was found not to be in priority need was not unreasonable. So far as the application for temporary accommodation was concerned, he was of the view, having considered all the relevant medical evidence, that Mr Lumley was not vulnerable on medical grounds. He said the council's officers had also taken into account his social circumstances before concluding that he was not in priority need. He added that Mr Lumley was in receipt of benefits, and that if he was unable to secure alternative accommodation, the Newham Night Shelter was now open, so that at least he would have a bed for the night. He had therefore decided that Newham should not accommodate him whilst reviewing his application. If further psychiatric evidence indicated that Mr Lumley's mental health was worse than was currently indicated by the evidence, he would review this decision.
26. On receipt of this letter, Form 86A was amended to add a challenge to this decision as well. On the afternoon of 8th November Keene J granted Mr Lumley permission to apply for judicial review, and Newham undertook to continue to accommodate him pending this hearing
27. To complete the history, on 24th November 1999 Newham received a 17-page report by Dr Anthony Coleman, a consultant psychiatrist. He diagnosed Mr Lumley as suffering from a depressive illness of marked degree associated with a high risk of suicide. He urged Newham's Homeless Persons Unit most strongly to accept Mr Lumley as a very genuine case for housing. He considered that Mr Lumley's homelessness seemed to be the critical factor causing his depressive illness and that it was therefore a critical factor in his suicide risk.
28. On 1st December Mr Clark saw Mr Lumley in his office. He gave Mr Clark a long list of addresses at which he had stayed since leaving home. Mr Clark asked him about discrepancies in the history he had given on different occasions, and Mr Lumley told him that he found it difficult to confide in strangers due to the sensitive issues involved. Mr Clark told him that he would be arranging an appointment with another psychiatrist which he must attend.
29. On 2nd December Mr Clark wrote to the psychiatrist he was instructing. He enclosed the Medical Questionnaire, Ms Savanhu's report and Dr Coleman's report. He said he had discussed Dr Coleman's report with Dr Sohail, and that they were both of the view that it seemed to lack any objective reasoning or clinical evidence. He said that the matter needed to be concluded within the next two to three weeks, although the psychiatrist might need to interview Mr Lumley if his views differed substantially from Dr Coleman's.
30. There the matter now rests, so far as Mr Clark's review is concerned. I was told that the eight-week maximum period for the review which is prescribed by regulations has been extended by agreement between the parties. In the meantime Newham has continued to provide Mr Lumley with temporary accommodation pursuant to its undertaking to Keene J on 8th November.
31. I accept Mr Woolf's submission that until Newham received the solicitors' request for a review on 2nd November, there was no decision which it needed to make pursuant to Section 188(3) of the 1996 Act. This provides that:
"(3) The duty [to provide accommodation under Section 188(1)] ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision.
The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review."
32. Mr Clark has explained the care with which he considered Mr Lumley's housing file over the weekend on 6th-7th November. In particular he noted the Medical Questionnaire, Dr Sohail's Medical Vulnerability Assessment Form and Thandi Savanhu's Vulnerability Assessment Form. He said that nothing in the first or third of these documents led him to conclude that Mr Lumley should be provided with accommodation beyond that day, and that Dr Sohail's comments were further confirmation that he was not vulnerable and therefore not in priority need of housing.
33. He did not apparently note that the GP had expressed the opinion that Mr Lumley was suffering from a severe depressive reaction. He noted that he was being treated with medication (rather than being referred to a psychiatrist) and that there was nothing to suggest that his condition had worsened. He felt that there was nothing exceptional about Mr Lumley's case. He had been homeless for some time and had coped quite well and was able to turn to a reasonably strong support group of friends and relatives for accommodation. Mr Clark was also aware that the Newham Night Shelter was available for single persons and that as a last resort he might be able to secure a bed there.
34. He expressed the view, which I share, that he had given adequate reasons for his decision when he wrote his short three-paragraph letter under pressure of time on the morning of 8th November. I turn therefore to the more substantive issues in the case which has been argued most ably by counsel on both sides.
35. I can deal quite briefly with an argument by Mr Knafler which is based on the decision of Mr David Pannick QC in R v Newham LBC ex p Ojuri (No 5) (1999) 31 HLR 631. Mr Ojuri had three children of primary school age. He therefore prima facie had a priority need for accommodation pursuant to Section 189(1)(b) of the 1996 Act. When the housing authority first became satisfied that he had become homeless intentionally, it was bound pursuant to Section 190(2)(a) of the Act to secure that accommodation was available for his occupation for such period as it considered would give him a reasonable opportunity of securing accommodation for his occupation. When it confirmed its decision following a review, it had a further discretion to secure that accommodation was available for Mr Ojuri and his children pending an appeal to the county court (see Section 204(4) of the 1996 Act), and against this background it is hardly surprising that Mr Pannick, sitting as a deputy judge, considered it arguable that it was wholly unreasonable for the council to terminate his accommodation with immediate effect as soon as it reached its decision on the review.
36. The facts of Mr Lumley's case are entirely different. He was a single man of 22, and if there was nothing prima facie arguably wrong with the council's decision to reject his claim to have a priority need under Section 189(1)(c) of the Act, I can see no flaw in its decision, confirmed by Mr Clark, that his temporary accommodation should cease on Monday 8th November, six days after it communicated to him and his solicitors its rejection of his claim. It is noticeable that Section 192 of the Act (entitled "Duty to persons not in priority need who are not homeless intentionally") contains no provision similar to Section 190(2)(a). Whether it would have been sensible for Newham to extend the temporary accommodation for a few days in the first instance when it received the solicitors' letters dated 2nd and, more particularly, 4th November, in order to avoid the heavy expense and disruption involved in High Court proceedings until such time as Mr Clark had had a chance to consider the file is a quite different matter.
37. I turn therefore to the central issue in the case. Mr Knafler submits that Mr Clark's decision on 8th November to decline to secure that accommodation was available for Mr Lumley's occupation pending a decision on a review was so clearly wrong as a matter of law that this court should set it aside
38. My task when considering this submission was considerably eased by two concessions Mr Woolf very prudently made. He conceded that he could not possibly defend the terms of his clients' decision letter of 1st November which simply recited some of the words of Section 189(1)(c) of the Act parrot-fashion and gave no substantive explanation for its decision.
39. He also conceded that his clients had failed in their duty under Section 184(1)(a) to make such inquiries as were necessary to satisfy themselves whether any duty, and if so what duty, was owed to Mr Lumley under the Act. It is probably sufficient in this context merely to quote a short passage from the judgment of Simon Brown J under predecessor legislation in R v Gravesham Borough Council ex p Winchester (1986) 18 HLR 208 at p 214:
"The burden lies upon the local authority to make appropriate inquiries ... in a caring and sympathetic way ... These enquiries should be pursued rigorously and fairly albeit the authority are not under a duty to conduct detailed CID-type enquiries ... the applicant must be given an opportunity to explain matters which the local authority is minded to regard as weighing substantially against him."
40. At the centre of Mr Lumley's case was the contention that he was vulnerable on the grounds that he was suffering from a severe depressive reaction to external events. Although modern psychiatrists prefer to speak in terms of "disorder" rather than "illness", he and his solicitors, supported by his GP, had put forward a prima facie case that he was in priority need as a result of "mental illness ... or other special reason". It was Newham's duty to inquire into that claim proactively, and although it sent a questionnaire to Mr Lumley's GP, who provided an answer which tended to support his claim, it was then content to refer his answer and the other papers in the case to a medical assessment officer, who is not a psychiatrist, who made no inquiries of his own, and who did not see Mr Lumley before completing a tick-box form to the effect that he was not considered to be vulnerable on medical grounds. He gave no reasons at all. This was the decision which the Council's Homelessness Unit regarded as final so far as the medical aspects of the case were concerned. It did not even seek to reopen the matter when Ms Savanhu's report might have suggested to them that rather fuller inquiries on the psychiatric front might be desirable. Compare R v Westminster City Council ex p Bishop 25 HLR 459 per Rose LJ at pp 465-6 for the council's deficiencies in this respect.
41. It follows, therefore, that when Mr Clark reviewed the file, he did not find in it the information which he ought to have found there, namely the results of the inquiries Newham ought itself to have made into Mr Lumley's psychiatric condition, and his response when those results, if adverse to his case, were put to him.
42. Mr Woolf did not dispute these propositions. He contended, nevertheless, that the decision Mr Clark made was one which it was open to him to make in the exercise of his discretion and that this court should not interfere with it.
43. The role of the High Court in these circumstances has recently been considered by the Court of Appeal in R v Brighton and Hove Council ex p Nacion (1999) 31 HLR 1095. Although the judgments contain the opinions of the members of that court when dismissing a renewed application for leave to apply for judicial review, and do not therefore constitute binding authority, they should be treated as highly persuasive, particularly as the court included Lord Woolf MR and both parties were represented. Although the issue in that case arose under Section 204(4) of the Act, rather than Section 188(3), the principles appear to me to be the same, subject to one matter which I will discuss below.
44. In the leading judgment, with which the other two members of the court agreed, Tuckey LJ commended what he called the helpful guidance to councils given by Latham J in R v Camden LBC ex p Mohammed (1998) 30 HLR 315, to which I will turn in a moment. He said that where a council, as in the present case, had obviously considered the material factors which Latham J identified in his judgment, it was an entirely futile exercise to seek to say that in some way its discretion was wrongly expressed by coming to the High Court for judicial review and saying "We have an arguable case on the appeal to the High Court". He said that applications for judicial review on this basis should be strongly discouraged, and that it was only in a very exceptional case that there would really be any reasonable prospect of interesting the court by way of judicial review to interfere with the exercise of the very broad discretion the council had.
45. In a short supporting judgment, Lord Woolf gave very strong support to these remarks. He agreed that it was only in an exceptional case that the court could intervene on judicial review. He added at p 1101:
"If an authority refuses even to consider exercising its discretion under Section 204(4) then I can understand that judicial review may be an appropriate remedy. Apart from that situation, I have difficulty in envisaging cases where applications for judicial review will be appropriate."
46. I reject Mr Knafler's submission that what was said by the members of the Court of Appeal in that case should be treated as having been said per incuriam. Observations made by judges in the regime which preceded the enactment of the Housing Act 1996 must not simply be transported across to the regime which is now in place. What the Court of Appeal was considering in ex p Nacion were the circumstances in which the High Court should intervene in the period between the rejection, following a review, of an applicant's homelessness claim and the hearing of his/her appeal on a point of law in the county court. By this time most of the errors, if any, made on the first consideration of the case should have been put right by the senior officer who conducted the review, and it is hardly surprising that the Court of Appeal poured buckets of very cold water over the proposition that there should be ancillary litigation in the High Court pending the hearing of the appeal in the county court. It is noteworthy that Lord Woolf MR said that the only course which could appropriately be taken in the general run of cases was to make an application in the county court for the appeal under Section 204 to be heard as soon as practicable. He expressed the hope that in this jurisdiction of homelessness, county courts would do their best to see that points of law which are appropriately brought before them under Section 204 are dealt with as promptly as possible.
47. I am, however, considering a rather different situation. The homelessness claim has only been considered once at local authority level. There is no question of an early hearing in the county court because no appeal can lie to that court until Mr Clark completes his review. Regulations permit him a maximum period of eight weeks for his review (unless extended by consent), and his own evidence shows that he has a very heavy caseload.
48. He is the only appeals officer in the London Borough of Newham. He has an assistant who is able to process administrative tasks but cannot make decisions because of her lack of seniority. On occasion, I was told, he can call for the help of a deputy if he was himself involved in the original decision. Due to the increasingly large number of reviews during the course of 1999, he says that an extension of the review period had to be agreed in many cases. He has produced statistics which show that over a three-month period he was able to complete 108 reviews, a number which was 5 more than the number of new cases he received during that period, so that he was able to reduce the outstanding backlog from 49 to 44 cases. He adds that in addition to the substantive reviews, in more than half of them he had to consider an application for interim housing pending the review, and that in the month of November 1999 he had to attend court on no less than eight separate days.
49. In paragraph 8 of his witness statement Mr Clark says that the decision whether accommodation should be provided pending review was entirely in the discretion of the local housing authority. This is of course correct, in the sense that it is not vested in anyone else, but it does not mean that the local housing authority is not bound to exercise its discretion in a principled way.
50. This is the issue which Latham J addressed in ex p Mohammed. In that case the respondent council had a policy for the provision of interim or temporary accommodation, whereby it would not be considered unless there were exceptional reasons. This, too, was a case in which a review was pending, so that the exercise of discretion under Section 188(3) of the Act was in issue.
51. In that case there were statistics before the court which showed that during a recent three-month period 51 reviews had been dealt with of which only four had been successful. (There are no similar statistics in the present case). Latham J said that this was a most useful piece of background information, since it indicated that there were very many requests for review of which only very few were found at the end of the day to have been meritorious. It seemed to him that the use by the council of the phrase "exceptional reasons" could properly be understood to reflect that reality. He continued at p 321:
"The important question is whether, in applying that phrase, it is apparent that the officers of the respondent council have either failed to take into account material considerations, have taken into account immaterial considerations or have otherwise displayed irrationality. The need that I identify as the underlying requirement of the exercise of this discretion is to keep, on the one hand, well in mind the objective of fairness between those who are homeless in circumstances where the local housing authority has in its first decision decided that there is no duty to the particular applicant and, on the other hand, to give proper consideration to the possibility that the applicant may be right, and that to deprive him or her of accommodation could result in a denial of an entitlement.
In carrying out that balancing exercise, it is clear that there are certain matters which will always require consideration. First, the merits of the case itself and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way.
Secondly, it requires consideration of whether there is any new material, information or argument put before the local housing authority which could have a real effect upon the decision under review.
Finally, it requires consideration of the personal circumstances of the applicant and the consequences to him or her of an adverse decision on the exercise of discretion. It may well be that in some cases other considerations may prove to be relevant."
52. It is Latham J's use of the expression "the merits of the case" which has the potential for giving rise to difficulty. At first blush it would seem to relate to the merits of the case on the facts, once all necessary inquiries have been made. A study of the next page of his judgment (at pp 321-2) shows that he did not intend the expression to be interpreted quite so restrictively.
53. The reason I say this is that on the facts of the case before him the applicant, who had had to leave her home because of domestic violence, gave inconsistent accounts of her husband's conduct. The council did not invite her to explain these inconsistencies, but simply told her of its decision that she was not homeless because accommodation with her husband was still available. After requesting a review, her solicitors pointed out to the council that she had not been afforded the opportunity to address the inconsistencies in her statements. The council did not respond by giving her that opportunity there and then. Its representative said, however, that she had taken full account of the solicitors' letter and all the matters set out in it before reaching her decision (to refuse temporary accommodation pending the review) based on the entire circumstances of the applicant's case. Latham J commented at p 322:
"In my judgment, that is an inadequate response to the point that was being made on behalf of this applicant which was, a point of some substance. It follows, that in relation to this particular decision, the respondent council did fall into error in failing to take into account a relevant and material consideration. Further, the original decision was tainted by unfairness; and the refusal to reconsider by bearing the applicant's explanation when the unfairness was identified compounded that unfairness. The consequence is that the decision under challenge must be quashed."
54. It is therefore clear that in his use of the expression "the merits of the case" Latham J must be taken to have meant "the merits of the applicant's case that the council's original decision was flawed", and I recommend that in any restatement of his guidelines this amendment should be made. In Mrs Mohammed's case he was satisfied that the council's original decision was flawed because it did not comply with its duty, as explained by Simon Brown J in ex p Winchester, to give her an opportunity to explain matters which it was minded to regard as weighing substantially against her. In Mr Lumley's case the council's original decision was even more seriously flawed because it did not pursue proactively any inquiries of its own into his medical condition after being told by Mr Lumley's GP that he suffered from a severe depressive reaction, and did not give him the opportunity of responding to such adverse medical evidence as it did obtain, in the form of Dr Sohail's tick on the tick-box form.
55. Mr Clark did not take either of these matters into account when he considered the file over the weekend of 6th-7th November. If he had, he would have realised that it was unfair for him to make any judgment on the medical evidence he found in the file, since the council had not carried out its duties properly (or indeed, in the relevant respect, at all). If he had realised this, he would in turn have realised that it would be unfair to place Mr Lumley in a worse position, as a result of the council's default, than his position just over five weeks earlier when the council had reason to believe that he might be homeless, eligible for assistance and have a priority need. Under Section 188(1) of the Act it was under a duty to provide him with temporary accommodation pending a decision as to the duty (if any) owed to him under Part VII of the Act. It had clearly not yet made a lawful decision, because of the shortcomings which Mr Woolf conceded. Justice therefore demanded that it should continue to provide him with temporary accommodation until it did.
56. I should add, by way of completeness, that the council's failure to give proper reasons in its letter of 1st November, however lamentable, forms no part of my decision in this case, for the reasons explained by Latham J on p 323 of his judgment in ex p Mohammed, in which he concludes:
"I would hope ... that if there are cases in the future where defective reasons are given in circumstances such as this, a prompt request for details will be made by the applicant or those acting on the applicant's behalf in order to enable the matter to be rectified if the respondent council is minded to or capable of rectifying it."
57. In other words, that sort of defect should be capable of being immediately rectified, and a fair hearing of the review can then continue. A wholesale failure to make appropriate inquiries in a critical area of a case and to put to the applicant the results of those inquiries (if adverse) is not, and the applicant should be entitled to continue to occupy his temporary accommodation until such a defect is effectively remedied during the course of the review.
58. Nothing in this judgment must be read in any way as detracting from the very persuasive authority of what the Court of Appeal said in ex p Nacion. The basic scheme of the homelessness legislation has been on the statute-book for so long now that I would hope that it is only in a very exceptional case that there is a total failure in performing the duty resting on a council in an important aspect of a case. If there is, then this court may well have to interfere, on well known principles. As Parker LJ said of the applicant in R v Kensington RLBC ex p Hammell [1989] 1 QB 518 at p 536:
"She is entitled to protection with regard to her public law right to have the necessary inquiries made and the decision properly made ... the injustice to the applicant, if she is not housed but is right, is clearly immense ... This is no more than interim protection for as long as it takes to decide the substantive matter ..."
59. Although that case was concerned with interim protection pending a judicial review hearing, and the present case is concerned with interim protection pending the determination of Mr Clark's review, the principles are the same. It must not be forgotten, too, that if Dr Coleman's diagnosis turns out to be correct, the effect of the withdrawal of accommodation in Mr Lumley's case may not merely be the loss of a temporary home: it may be the loss of a human life. Dr Coleman writes at p 16 of his report:
"Although suicide risk is closely linked to depressive illness, which is therefore the primary causative factor, the prevalence of depressive illness is so common whereas suicide is rare, that there are always other factors which result in the depressed patient committing suicide.
Homelessness is one of those critical factors and probably the one with the highest risk attached to it."
60. In R v Waveney District Council ex p Bowers [1983] 1 QB 238 Waller LJ said at p 244:
"[`V] ulnerable' in the context of this legislation means less able to fend for oneself so that injury or detriment will result when a less vulnerable man will be able to cope without harmful effects."
61. It is into this case that Newham, now in the person of Mr Clark, is under a duty to inquire, and in my judgment Mr Clark was clearly wrong when he refused to continue Mr Lumley's temporary accommodation before those inquiries were properly and lawfully complete.
62. For these reasons I consider that Mr Lumley is entitled to judicial review and I will hear counsel as to the form of the order I should make.
63. There are two matters which I wish to add by way of an appendix to this judgment. The first is that at the centre of this application is the claim that Mr Lumley is vulnerable in the relevant sense because he is suffering from a severe depressive order. It is, I believe, well-known that psychiatric illness is often regarded with less sympathy than physical disability, perhaps because it is not so readily understood by lay people. In its report on Liability for Psychiatric Illness (1998) Law Com No 249, the Law Commission has given a description of depressive disorders in very clear layman's language which Newham would do well to study during the current review of his case:
"It is part of normal human experience to feel unhappy at time of adversity but ... mere grief or distress is not compensatable at law. Depressive disorders are distinguished from more ordinary fluctuations in mood by the severity and duration of symptoms, and by the effect of these symptoms on nearly all activities. In broad terms, a depressive disorder is characterised by a cluster of symptoms including: depressed mood most of the day, nearly every day, for at least 2 weeks; loss of interest or pleasure in activities that are normally pleasurable; decreased energy, change in appetite; sleep disturbance; difficulties in concentrating; feelings of worthlessness; and recurrent thoughts of death.
Several studies have shown that depressive disorders often follow severe stressors, such as the loss of a loved one ..."
64. I do not know why Dr Sohail found himself capable of expressing the opinion that Mr Lumley was not vulnerable on medical grounds without examining him, in the light of the evidence before him, because he gave no reasons for his view. It was, of course, wholly reasonable for Mr Clark to instruct a psychiatrist of his own choice once he received Dr Coleman's report, and to ask that psychiatrist any questions on which he sought to have his guidance. It would, however, have been better, in my view, if he had framed his instructions more neutrally, bearing in mind the fact that although employed by the council he had a role equivalent to a judicial one in the conduct of his review. There is at present quite widespread concern in the context of litigation in this country that some experts give evidence of a kind they think their clients want them to give, and some of Lord Woolf's recommendations in his report on Access to Justice were designed to meet this concern. In a field as sensitive as the present it is of critical importance that local authority appeals officers should not even give the appearance of having told an independent expert of the type of evidence they would like him to give in the context of a homelessness review.
65. The second observation I wish to make is that in 1994 the Law Commission expressed concern about the number of homelessness cases in the Crown Office List in its report on Judicial Review and Statutory Appeals (1994) Law Com No 226 at paras 2.23 to 2.27: see also Appendix C, paras 6.1 to 6.3, 8.23 and 9.1(2)(iii) and (iv).
66. There were 152 housing cases among the caseload of the Crown Office List as at the end of July 1994 (see p 176 of the report). That number was very considerably reduced when jurisdiction was transferred to the county court to hear appeals on points of law against certain decisions made under Part VII of the Housing Act 1996 (see s 204(i) of the Act). Parliament did not, however, give the county court jurisdiction over decisions relating to the provision of temporary accommodation under Section 188(3) or 204(4).
67. I have been told by the Head of the Crown Office that following the judgment of the Court of Appeal in Ali v Westminster City Council (1998) 31 HLR 349 the number of applications for judicial review in homelessness cases has started to grow again, and that there were nearly 100 such applications in the List last year. On p 165 of its 1994 report the Law Commission recommended that machinery should be in place to spot those categories of business which were coming in large numbers to the Crown Office List on judicial review, and prejudicing the efficient operation of that List, for want of a more appropriate appellate or supervisory jurisdiction being provided at a lower level. The time must surely be approaching when this issue should be revisited in relation to homelessness cases. Judicial review applications are expensive and time-consuming, particularly for local authorities and claimants outside London, and even if the House of Lords were to reverse the decision of the Court of Appeal in Ali, which is a Section 204(4) case concerned with interim protection pending an appeal to the county court, the present case shows that difficulties are much more likely to arise in Section 188(3) cases where it is hard to see that the county court could possibly be thought to have jurisdiction under the present law. I therefore direct that a copy of this judgment be sent to the Civil Business Directorate of the Lord Chancellor's Department so that it can consider, in conjunction with the Department of the Environment, the growing pressures on the Crown Office List, even before the Human Rights Act comes into force, which is being caused by the fact that Parliament has not yet given judges in the county court jurisdiction to intervene by injunction, if appropriate, in an exceptional case of this type.
68. I will now hear counsel as to the order I should make.
- - - - - - - - - - - -


LORD JUSTICE BROOKE: For the reasons set out in my judgment,
copies of which have been made available to the parties, this appeal is allowed.

Mr Knafler, I am sorry that I misspelled your name in the draft. Certainly, Mr Woolf has looked after your interest while you were earning your living elsewhere. It shows the value of counsel customarily taking a draft. I am afraid my mind is rather full of legal aid at the moment.

I have made some observations about procedure on the final page of my judgment. I direct that a copy of it be sent to the Civil Business Directorate of the Lord Chancellor's Department or whatever it is and that also the attention of the Crown Office be drawn to it.

LORD JUSTICE BROOKE: Have you agreed an order?

MR KNAFLER: We have, my Lord. The local authority has indicated that it will continue to accommodate Mr Lumley pending completion of the review, and that indication is sufficient. I simply ask for an order that the application for judicial review be allowed, that the Respondent pay the Applicant's costs, to be subject to a detailed assessment if not agreed, and that there be a detailed assessment of the Applicant's legal aid costs?

LORD JUSTICE BROOKE: In these carefree days one just orders judicial review, does one, without saying what one does?

MR KNAFLER: I suppose formally I could seek an order of certiorari of the relevant decision.

LORD JUSTICE BROOKE: I should quash the relevant decision, subject to anything Mr Woolf says.

MR WOOLF: My Lord, I do not have any particular objection to your Lordship so doing. It is clearly intended from my Lord's judgment.

LORD JUSTICE BROOKE: What about costs?

MR WOOLF: I have nothing to say, my Lord.

LORD JUSTICE BROOKE: Very well. The Respondent shall pay the Applicant's costs. Do you need a legal aid certificate as well?

MR KNAFLER: Yes, my Lord, if that could be in the order for detailed assessment.

LORD JUSTICE BROOKE: I am extremely grateful to both counsel for their help in this case.

© 2000 Crown Copyright

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