Banks v Kingston upon Thames Royal Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 17 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1443 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2007/2832 |
| Date | 17 December 2008 |
[2008] EWCA Civ 1443
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Crawford Lindsay QC
Royal Courts of Justice
Strand, London, WC2A 2LL
lord Justice Longmore
Lord Justice Wilson and
Lord Justice Lawrence Collins
Case No: B2/2007/2832
7KT01419
Mr David Carter and Ms Sarah McKeown (instructed by Kingston and Richmond Law Centre) for the Appellant
Mr David Warner (instructed by Royal Borough of Kingston-upon-Thames) for the Respondent
Hearing date : December 5, 2008
Lord Justice Lawrence Collins:
I Introduction
Geoffrey Banks is a fifty-one-year-old man with alcohol-related liver cirrhosis, alcoholism, depression and asthma. He is divorced and has a young son with whom he has contact. In a decision dated November 1, 2006 the Homelessness Assessments Team of the Royal Borough of Kingston-Upon-Thames (“the Council”) found that Mr Banks, who was then homeless, did not have a priority need for accommodation. Shortly afterwards he rented a small room in a house, and made a fresh application to the Council on the basis (inter alia) that his medical condition made it impossible or difficult for him to live there. In February 2007, the Council issued a decision letter refusing his application on the ground that he was not homeless or threatened with homelessness.
Mr Banks' landlord gave him notice to quit. Mr Banks exercised his right to request a review of that decision. On review the Council varied the original decision to a decision that Mr Banks was homeless in light of the notice to quit. But the decision that the Council did not have a duty to house Mr Banks was upheld on the ground that Mr Banks did not have a priority need.
Under the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 1999 No 71) (“the 1999 Regulations”), Regulation 8(2), there is a right to make representations where the reviewing officer considers that there is a deficiency in the original decision, but is minded nonetheless to make a decision which is against the interests of the applicant. Mr Banks was not given an opportunity to address the issue of priority need after the reviewing officer had decided that the original finding that Mr Banks was not homeless could no longer stand. This appeal is said to raise (among other questions) a question of principle whether, when the facts change, the original decision can be said to contain “a deficiency”. In fact, although the point does arise and is by no means easy, it is, as I shall indicate, virtually devoid of any practical significance in the present case.
II The background
This is Mr Banks' appeal against the decision of HHJ Crawford Lindsay QC made on November 22, 2007 at the Central London County Court. That, in turn, was an appeal brought under section 204 of the Housing Act 1996 by Mr Banks, to challenge a decision of the Council, made on March 20, 2007, that he was not a person with a priority need for housing within the meaning of section 189 of the 1996 Act, in particular that he was not vulnerable within the meaning of section 189(1)(c).
He applied to the Council as homeless in October 2006. Notes taken by an officer of the Council on October 13, 2006 recorded, inter alia, that Mr Banks was an alcoholic, that he said he was depressed and that he had been taking anti-depressants but his doctor took him off them after he overdosed on them. He had been suicidal, but was better and not suicidal at the time the notes were made.
Following a request in standard form dated October 13, 2006, from the Council for information about his medical history (including details which would allow the Council to make an assessment regarding vulnerability), Dr. Parekh of Mr Banks' G.P. surgery wrote to Mr Nicholson, the Homelessness Assessments Officer, to say that Mr Banks had, over the previous months, been very depressed, had lost a considerable amount of weight and had been on antidepressant tablets. The letter also stated that Mr Banks had been drinking heavily, had been referred for community detoxification and that he had attempted an overdose the previous December; and that Mr Banks suffered from considerable agitated depression which, together with his asthma, had flared up in the last few months and that he had been attending regularly at the surgery. The report letter stated that Mr Banks remained very vulnerable and requested that the Council urgently consider him for re–housing.
November 2006 Decision
In its decision letter pursuant to section 184 dated November 1, 2006 the Council found that Mr Banks did not have a priority need. The letter concluded that Mr Banks was reasonably able to cope with finding and maintaining his own accommodation and that he was considered to be no less able to find for himself than his peers, so that injury or detriment would not result, when a more vulnerable person would not be able to cope without harmful effects. No request for a review of the decision was made by Mr Banks.
Dr. Parekh's letter was stamped as seen by the Council's Independent Medical Adviser, Dr. Hinton, on November 14, 2006, almost 2 weeks after the date of the section 184 decision. Dr Hinton filled in a medical assessment form on November 14, 2006, recording that he had seen Dr. Parekh's letter stating that Mr Banks drank heavily, and commenting that there was evidence of mental health issues as well as alcohol misuse and asthma. However, he noted that there were no details regarding prognosis or referral to the Community Mental Health Team. Dr. Hinton advised the Council to obtain more details and review the position. He stated that the Council could fax him if it had concerns but “but not in priority need at this stage.” He ticked the box on the form which indicated that further information was required.
On November 3, 2006 Mr Banks entered into a licence agreement for occupation of 86 Blagdon Road, New Malden, Surrey, KT3 4AE for a term of six months, commencing on November 3, 2006. He rented a small room, and six other people were living in the house.
Mr Banks applied again as homeless to the Council on February 8, 2007. In the Homelessness Application Form completed by the Council on the same date, it is stated that Mr Banks had medical problems and had a history of mental illness/bizarre or disorientated behaviour. It also recorded that he was depressed. In support of his application, Mr Banks provided the Council with a letter he had written on February 5, 2007, dealing with the condition and suitability of the premises in which he was living, and the effect that this had on his health.
Notes taken by an officer of the Council on February 8, 2007 recorded inter alia, that Mr Banks was sharing accommodation with seven people. Mr Banks reported that he was on diuretic tablets which might make him want to go to the toilet frequently but it was inconvenient to do so with so many people using one toilet. Further, Mr Banks had his son to visit at the premises and the living conditions were not ideal.
The initial assessment form of the same date indicated that he was not homeless.
On February 8, 2007, the Council also requested (again in standard form) the same information from Mr Banks' G.P. regarding his medical history as it had done in October 2006.
A report dated February 13, 2007 on Mr Banks was completed by the Kingston Community Drug & Alcohol Team. The report confirmed that Mr Banks was receiving treatment for alcohol dependency and was making good progress. The report further stated, inter alia, that Mr Banks had identified two triggers which may cause him to relapse: his home environment and lack of access to his son. The letter concluded by expressing the view that if Mr Banks were to relapse from alcohol, his physical, mental and emotional health would deteriorate significantly.
On February 14, 2007 Dr. Davidson of Mr Banks' G.P. surgery wrote to Mr Nicholson to say that Mr Banks had a history of alcohol related liver cirrhosis, alcoholism, depression and asthma. He had quite severe medical problems as well as depression, he was seeing a doctor at Kingston Hospital in relation to his liver disease and he had recently had an inpatient admission due to a decomposition of liver function. The letter expressed the view that if Mr Banks was not compliant with his medication and specialist review then his condition could deteriorate rapidly and possible be fatal. Further, as a result of Mr Banks' medication, which promoted urination and had a laxative effect, he required easy access to a bathroom. The G.P. also mentioned that Mr Banks had told her that he did not have much access to a kitchen and his medical conditions meant that it was important that he ate a healthy diet. There was a further concern that his room was cold and damp and this was potentially a problem in an asthma patient and could predispose him to developing a community acquired pneumonia. The G.P. noted that Mr Banks' son was his “driving force” in his desire to give up alcohol and if his son could not stay with him at the premises, as the landlord had refused to let his son stay, this may result in a deterioration in Mr Banks' condition. The letter concluded by stating that if the Council required any further information it should not hesitate to contact Dr. Davidson.
The notes attached to the Homelessness Application Form stated that Mr Banks' file was left for Dr. Hinton on February 20, 2007 but that he had not read it....
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