Hijazi v Kensington & Chelsea Royal London Borough Council [2003] EWCA Civ 692

Housing – intentionally homeless – review – evidence

H was an assured shorthold tenant of a flat in south-west London, where he lived with his partner and two children. He fell into rent arrears and his landlord obtained a possession order against him. After he was evicted, he applied to the authority for assistance as a homeless person.

The authority decided that H was intentionally homeless as a result of his failure to pay the rent and H sought a review, relying in particular on various medical evidence about his mental condition, including evidence from a Dr ‘B’ which stated that H suffered from psychological difficulties which rendered him incapable of making a decision which would render him homeless intentionally.

In his decision letter, the authority’s reviewing officer stated that he considered that, as at the date of the eviction, the evidence showed that the appellant was in a position to manage his financial affairs. The decision letter did not refer to Dr B’s report.

H appealed on the ground that the authority had failed to consider Dr B’s report which, he argued, showed that he was incapable of paying his rent at the material date. In response, the reviewing officer filed a witness statement in which he stated that he had taken Dr B’s report into account but that he had considered that this evidence did not assist because it did not deal with the appellant’s state of mind at the relevant date, ie the date of his eviction (May 2001).

The county court judge allowed the statement to be introduced as evidence and dismissed the appeal. H appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, stating that it was settled law that a court may admit a statement from a decision-maker to clarify or correct the reasons given in a decision letter. There was nothing objectionable in a subsequent statement identifying the material which was taken into account. The function of such evidence should generally be elucidation not fundamental alteration; confirmation not contradiction of the decision under review. Although it was unfortunate that the decision letter did not refer specifically to Dr B’s report, the reviewing officer was entitled to take the view that the report took matters no further because it did not refer to the appellant’s medical condition at the material time. He was entitled to conclude that there was nothing in the doctor’s evidence to suggest that he should have pursued other inquiries to confirm his conclusion.

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