Javid Firoozmand v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Kitchin,Lady Justice Gloster |
| Judgment Date | 03 September 2015 |
| Neutral Citation | [2015] EWCA Civ 952 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2015/0559 |
| Date | 03 September 2015 |
[2015] EWCA Civ 952
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HH Judge Mitchell
A02LB522
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Kitchin
and
Lady Justice Gloster
Case No: B5/2015/0559
Mr Toby Vanhegan (instructed by Wainwright and Cummins LLP) for the Appellant
Mr Wayne Beglan (instructed by London Borough of Lambeth Legal Services) for the Respondent
Hearing date: 30 July 2015
This is an appeal by Mr Javid Firoozmand against the dismissal by HH Judge Mitchell of his appeal under s.204 of the Housing Act 1996 ("HA 1996") from the decision by a reviewing officer of the London Borough of Lambeth ("the Council") that the accommodation provided for him at Studio 52, 40 Kenbury Street, London, SE5 ("Studio 52") is suitable within the meaning of s.210 HA 1996. This is a second appeal for which permission was granted by Ryder LJ.
The appellant was born in September 1964. He is Iranian. He arrived in the UK on 26 February 2000 and claimed asylum. The application was refused but eventually on 18 February 2013 he was granted three years' discretionary leave to remain. In March 2012 he had been attacked and suffered serious head injuries. The evidence is that he has various physical and mental health issues including sensitivity to noise, chronic hypersensitivity pneumonitis, anxiety and depression. He has made various suicide attempts.
Between 2009 and April 2013 he occupied a flat in London SW2 but was evicted after the landlord had obtained an order for possession in order to refurbish the property. On 5 April 2013 his solicitors made a Part VII application to the Council for homelessness assistance. His solicitors had written to the Council on 25 March saying that Mr Firoozmand had a long history of mental illness which made him less tolerant to noise from neighbours. They said it would be preferable if he had accommodation on the top floor of a building with fewer neighbours. In an interview with the Council's housing department, Mr Firoozmand said that he was reluctant to live in a hostel and would prefer private accommodation on the top floor of a property. In a medical assessment form signed on 16 April 2013, he stated that he was very sensitive to noise and scared when he hears people walking in rooms above him. In the event, he was given temporary accommodation in Studio 48, 40 Kenbury Street which is a hostel containing a number of units of accommodation. The appellant says that the accommodation there was too noisy due to nearby building works and that he had taken to sleeping rough in a neighbouring park because of it. His solicitors continued to press the Council to provide alternative accommodation but on 8 July 2013 the Council made a s.184 decision that the appellant was not in priority need. There was a statutory review of the decision under s.202 and the decision was withdrawn. By letter dated 17 September 2013 the Council informed the appellant that they had concluded that he was homeless, eligible for assistance and in priority need so that they owed to him a full housing duty under s.193(2) HA 1996.
They proposed to comply with that duty by continuing to accommodate him in Studio 48.
The appellant requested a review of the decision that the accommodation was suitable. In a letter of 26 September, his solicitors wrote:
"We note that despite numerous medical reports, you have still failed to properly assess the seriousness of our client's mental health condition. The medical reports confirm our client has a history of suicide attempts. The stress caused by our client's current unsuitable housing condition is contributing significantly to his stress levels affecting his pain levels and his ability to cope with his pain.
….
We have been instructed by our client the current accommodation is too noisy and affecting his mental health condition. We have been requesting you to transfer our client to a suitable alternative accommodation for several months due to the anti-social behaviour by the other occupants and some of the staff in the hostel providing you with significant medical evidence in support of our client's mental health condition.
….
We therefore request you to take in to account the seriousness of our client's housing condition and mental health condition and provide to him as a matter of urgency a suitable alternative accommodation on a top floor accommodation or in an unshared flat. We have been instructed by our client that he has requested you to provide him with either a top floor accommodation or an unshared flat so that he can live quietly without any disturbance".
In the meantime, the appellant agreed to accept private sector housing if the Council could locate some accommodation in that sector which was suitable.
On 22 November 2013 the Council's reviewing officer decided that the accommodation at Studio 48 was suitable. The reviewing officer, Ms Samuels, said that she had investigated the appellant's complaints about noise emanating from the closing of a door and that steps had been taken to adjust the closing device. She also said that there had been no recent incidents of anti-social behaviour in the block. The officer also referred to the fact that a second floor was being added to the building and that the Council's intention was to move Mr Firoozmand to what would become the top floor once it was completed. On 2 December 2013 the appellant was moved to Studio 52 on the second floor of the building which, as I have said, is a double room on the top floor.
On 9 December 2013 the appellant requested a review of the decision that Studio 52 was suitable accommodation for him. In his letter in support of the application, the appellant said:
"The accommodation at Studio 52 is not suitable for me as it is too noisy. There are other occupants in the adjoining flats who make noise affecting my health. I believe that the accommodation is not suitable for me on medical grounds".
The appellant's solicitors confirmed in correspondence that what they wished to challenge was the suitability of the accommodation. The appellant had, they said, an extremely strong reaction to any noise and had been greatly distressed by the noise in his current accommodation. He had attempted suicide a few days before. They asked the reviewing officer to consider the correspondence from the appellant (quoted above) and also two letters of 6 December 2013 from the appellant's GP. In one of those letters, the GP said:
"As has been extensively documented, Mr Firoozmand has an extensive history of problems with his mental health, including serious suicide attempts. He suffers from ongoing depression and is particularly troubled by any noise in his home environment. He is currently housed in a hostel and is frequently disturbed by even the normal activities of other residents. Mr Firoozmand has an extremely strong reaction to any noise, and has been greatly distressed by the noise in his current accommodation, to the extent that he has told me today that he will kill himself before Christmas if he is not moved to somewhere more suitable immediately."
In a letter dated 28 February 2014 the Council's reviewing officer (Ms Edwards) said that she had decided that the accommodation at Studio 52 was suitable. It was on the top floor of the building and the only near neighbour was one woman with a 2 year old who was said to be very quiet. It was unrealistic in a built-up area like Lambeth for the appellant to expect to be housed in solitary accommodation away from all other people.
The appellant appealed under s.204 HA 1996 to the County Court on the grounds that the Council had not in fact made a prior decision on suitability which Ms Edwards could review and that the process was procedurally unfair because the appellant was not informed of the nature of the Council's case on suitability. On 22 April 2014 the appellant's GP wrote a further letter stressing his mental instability and stating that an ideal situation for him would be a top floor flat in a small building without many other residents. But the letter goes on to say that it was also important that, in order to allow him to maintain his mental stability, Mr Firoozmand should reside in the local area in Streatham where he had a network of friends and health care professionals.
On 29 May 2014 HH Judge Wulwik quashed the 28 February review decision because no proper decision about the suitability of the accommodation had been made in the first place. The appellant's solicitors therefore wrote to the Council on 10 June 2014 submitting further reports from the GP and the Maudesley Hospital and explaining why Studio 52 was unsuitable for the appellant. The solicitors said that there had been a fight at the property between the supposedly quiet woman and her boyfriend and that the appellant was unable to continue to live there. The Council was asked to take these matters into account in deciding how to discharge its s.193(2) duty. But by letter on 4 August the Council advised the appellant's solicitors that it still considered that Studio 52 was suitable for his housing needs.
In July 2014 the Council was also provided with further information from the appellant's GP confirming an additional diagnosis of chronic hypersensitivity pneumonitis. There was, however, nothing in the doctor's note to indicate what effect this had on the appellant relevant to the type of accommodation that might be suitable for him and it was only in November...
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