“Just to let you know it was complete victory! The council are paying the provider all of the amount they were demanding, and are requesting that that provider refunds ME some of what we paid in for E’s care.
They are also starting the process of transferring him to another council for Ordinary Residence purposes.
Thank you for all your work on this, I wouldn’t have got this result without it.”
“Thank you so much for your thoughts on our CHC predicament. It was very detailed and was of great help. I used some of its content with the solicitor to prepare the document lodging our appeal against the CCG to have an independent NHS England review. I again thank you, the report helped me focus on the task and I have now a clear view on how we move forward even if the conclusion isn’t favourable.”
Facts of the case
SH travelled to the UK in 2012 having fled trafficking for the purposes of sexual exploitation. She was granted refugee status in 2014.
She applied to WF as homeless in September 2014. WF accepted the main housing duty and after was eventually provided with permanent accommodation in Ilford in May 2016.
In May 2017, SH was served with a no-fault eviction notice requiring her to vacate the property.
In August 2017, SH was offered and accepted a property in Tottenham. SH and her daughter had considerable issues with the property, in particular the fact that the communal grounds to the flat being used as an open air brothel where sexual activity could be seen by SH and her daughter. Evidence from the school and a psychiatrist’s report had provided evidence on the effect on SH’s mental health and her daughter’s development.
In July 2017, SH approached WF asserting that she was homeless.
In October 2018 WF made an offer of a property in Kettering under section 189B(2) in discharge of its relief duty.
SH refused the offer.
The issue in dispute
The issue before the court was whether this was a re-application by SH, in which the main duty under section 193(2) was still owed, or whether it was a fresh homelessness application, in which case the ‘lesser’ duty under section 189B(2) (to take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least six months) was owed and had then been discharged once SH refused the offer.
Central to this issue was whether the offers of the properties in Ilford and Tottenham were made in accordance with the provisions relating to private rented sector offers, contained in section 193 (7AA) and (AB) of the Act.
The Law
The section 193 duty can be discharged under section 193(7AA) of the 1996 Act if the applicant, having been informed in writing of the matters mentioned in section 193 (7AB) accepts or refuses a PRS offer.
Thus, to be a valid discharge of the section 193 duty, the following conditions need to be met:
There has to be an offer of a property in writing, which warns the applicant of the matters in section 193(7AB), namely:
In addition, the property has to comply with the conditions in section 193 (7AC) namely,
The Court’s decision
Given that WF could not produce a copy of the offer letter, the court concluded that the offer letter for the Ilford property had not been sent and therefore that the offer did not comply with section 193 (7AA) and (7AB) of the Act and that therefore the duty under section 193(2) was not discharged in May 2015.
In terms of the Tottenham property, the court found that the property was never suitable accommodation. The court stated that given the particular characteristics of SH and her daughter, the offer should never have been made. It therefore concluded that as the Tottenham offer did not meet the statutory requirements of section 193 (7AA) and (7AB) and that therefore the duty under section 193(2) was not discharged in August 2016.
The court decided that section 189B(2) did not apply to AH because she was still owed the section 193(2) duty following her original application in 2015. The application made in July 2018 was not a fresh application. By regulation 4 of the Homelessness Reduction Act Regulations 2018/167, the amendments made do not apply in relation to an application for assistance made under section 183 of the Housing Act 1996 before the 3rd April 2018.
Learning Points for Advisers
Most advisers will be aware that the Localism Act 2011 allowed for local authorities to discharge their main housing duty by offering an assured shorthold tenancy in the private sector for at least 12 months.
This decision illustrates the importance for advisers of checking that a PRS offer made in discharge of the main housing duty has been validly made, not only in terms of the suitability of the accommodation but also by checking that the contents of any offer letter meet the requirements of 7(AB).
This will be particularly relevant in cases, as with the above case, where applicants have been evicted from a PRS property offered before the 3rd April 2018 and are now re-applying as homeless to the local authority.
Facts of the case
This was an appeal by the appellant, Mr. Guiste, of a decision by the County Court upholding Lambeth’s decision that he was not in priority need for homelessness accommodation.
Mr. Guiste suffered from potentially serious physical and mental health problems. He had a thyroid condition called hypoparathyroidism, which if untreated by prescription medication, could lead to convulsions.
In dispute in this case was the seriousness of the appellant’s mental problems. On the instruction of his solicitors, the appellant was examined during a lengthy face to face interview by Dr. Freedman, a Fellow of the Royal College of Psychiatrists with over 20 years of providing reports for the courts.
Mr. Guiste had a history of cannabis use and there had been previous incidents of self-harm and suicidal thoughts. The psychiatrist’s report noted that the appellant suffered from anxiety and depression and was at risk of harming or even killing himself due to command hallucinations. He did not understand the importance of taking his medication and needed help from his mother to manage his finances. She concluded that, if made homeless, it was unlikely that Mr. Guiste would take his medication, his mental health would deteriorate leading to a greater risk of self-harm and suicide.
Lambeth “outsourced” the provision of medical advice in housing cases to an organisation called NowMedical Limited. Two psychiatric advisers employed by NowMedical prepared reports for Lambeth about Mr. Guiste’s application for housing, but as is standard practice in such cases, neither of them examined or interviewed Mr. Guiste and for an unknown reason did not take up the opportunity to discuss Mr. Guiste’s case with Dr. Freedman.
The Legal Test
The court accepted that the review officer, when considering the issue of vulnerability, had considered the correct legal principles as set out in Hotak v Southwark LBC and Panayiotou v Waltham Forest LBC, namely;
“The assessment should be based on whether when compared to an ordinary person if made homeless, the applicant 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”.
Submissions by Lambeth asserted that the relevant question of ‘functionality’ is whether the applicant’s circumstances would affect his functionality so as to make a noticeable difference to his ability to deal with the consequences of homelessness.
The court rejected adding an extra layer of complexity into a test which is already far from simple. The judge confirmed that “Lewison LJ’s observations (in Panayiotou) on functionality were made in the context that there must be a causal link between the particular characteristic relied on under section 189(1)(c) and the effect of homelessness.
The decision
In his judgement, Lord Justice Henderson noted that the reviewing officer had failed in her review decision to provide cogent reasons for why she had favoured the evidence of NowMedical over the evidence of Dr. Freedman. This was despite the fact that Dr. Freedman was better qualified, had addressed her mind to the specific legal question, and most importantly, had based her opinion on a personal examination of Mr. Guiste.
The court found that such a failure amounted to a breach of the principles of rationality and fair decision making.
However, the court also concluded that, based on the evidence before it, that the issue of priority need must not inevitably be determined in Mr. Guiste’s favour. It therefore did not substitute its own decision of priority need, but instead ordered that Lambeth should reconsider the issue of priority need by holding another review by a different officer.
Learning for advisers
This case highlights the importance of advisers obtaining medical evidence from an appropriately qualified medical professional to support their client’s case wherever possible. It is also vital that the adviser sets out the correct legal test for the professional and asks them to address this directly.
This case also highlights that, in all but the clearest of cases, the courts will be reluctant to substitute their own decision for that of a review officer. The court’s role is as a guardian of fair and rational decision making rather than as an arbiter of the facts.
A homelessness officer is supposed to compare the specific applicant with an ordinary person faced with homelessness when considering vulnerability.
Rother DC v Freeman-Roach [2018] EWCA Civ 368 held that the ‘ordinary’ or ‘average person’ should be considered to be ‘ordinarily robust and healthy’.
The Supreme Court, in the combined cases of Johnson, Hotak and Kanu, as to how to approach this question, held that a housing authority should consider whether the specific applicant would suffer or be at risk of suffering harm or detriment which the ordinary person faced with homelessness would not suffer or be at risk of suffering, such that the harm or detriment would make a noticeable difference to their ability to deal with the consequences of homelessness. Many homeless persons have mental health and substance misuse problems, but the test is not how would the average homeless person with these problems cope? That was the approach that Hotak in particular put an end to. It was then a very hard test to qualify as vulnerable, under, if one had to be appreciably worse than an ordinary homeless person, when an ordinary homeless person may have experience on the street, and a swathe of existing issues. So the mental health and substance abuse issues of many a specific applicant should be enough to make them vulnerable.
Experience on the streets might be used to suggest that their history of street homelessness without particular harmful effects makes that person less vulnerable than the ordinary person, but that would have to be considered on a case by case basis.
An ordinary person, if made homeless, might have an initial disadvantage, in terms of lack of experience, but that person is not going to have severe physical or mental impairments, or substance misuse issues which are foreseeably likely to raise a person’s level of vulnerability when living on the streets.
Geoff Davies, CASCAIDr commentator
“It’s been a long, hard, stressful, anxious and frustrating time for us all. Without your professional knowledge and genuine human kindness due to the passion you have for helping and genuinely caring for people like me, we would of had no choice but to give up fighting, a long time ago.
It’s down to you and you alone that I now have a fighting chance of ensuring justice prevails. I really hope our complaint is upheld by the LGSCO not just for myself, but for the many others who are in the same situation as me. This proves there is at least a ray of hope!”
It’s easy to make a donation, and we hope we have inspired you to do so.
You can click on the Donate button above or on our right hand side bar, to donate to our cause, core costs and ongoing output. Our Donation Button was the most cost-effective giving site we could find, and that means that we are maximising the proportion of your donation, and putting it to use. It costs just 10p per donation (and 1.4% of the amount goes to the card company.) There are no transaction fees, only a card processing fee. We are advised that if donors added £1 to every £60 they want to donate, they would be covering the card fee and the company’s own processing charge, in any event. So a donation of £61.00 means we receive £75.30 if you can tick the Gift Aid box, or £60.05 if not.
There’s no set amount for a donation. We’re happy with whatever amount a person can afford, even if it’s just £10.00, especially if it can come in a little and often, we’re in it for the long term and need to keep going. We’d really appreciate your sign-up for automated ongoing contributions – monthly is how that works. You will be able to click to do the GiftAid declaration, if you are a taxpayer – as it makes the government pay us an extra 25%.
If you are a business, you can donate and make it a tax deduction, because of our charitable status.
If you’re a business with health and social care clients, how about £1 per client per year, as an affordable suggestion? Or £2 a year per client, if you are a private for-profit provider?
Whatever the basis of your business, we’d be just as happy if you took out a Package Deal if you’re a lawfirm, health/social care/support provider, support broker or advocacy organisation. Package Deals are equally tax deductible, because the membership fee means you’re buying actual benefits, and all the money goes into the Charity’s funds.
Just email belindaschwehr@cascaidr.org.uk for a Package Deal invoice, from the Trading Company, if that’s your preferred means of supporting us.
If you or your staff like being sponsored to DO amazing things, we’d love it if you were to organise a fund-raiser for CASCAIDr. We can provide you with blurb, pictures, success stories to help you, too!
Major donations really improve the amount of assistance we can provide to those with care and support-related public law legal problems. It could lead to a person receiving advice when no one else is willing and/or able to help.
Your generosity, towards the end of your life, through a legacy, could make a real and lasting positive difference to the lives of many of our typical users and clients.
If you would like to make a major donation or leave a legacy please feel free to email belindaschwehr@cascaidr.org.uk
