Osmani v Camden London BC

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date16 December 2004
Neutral Citation[2004] EWCA Civ 1706
Docket NumberCase No: B2 2004/1954 ACL52662
Date16 December 2004

[2004] EWCA Civ 1706

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

HIS HONOUR JUDGE CRAWFORD LINDSAY QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Right Honourable Lord Justice Auld

The Right Honourable Lord Justice Judge and

The Right Honourable Lord Justice May

Case No: B2 2004/1954 ACL52662

Between:
Naser Osmani
Appellant
and
London Borough of Camden
Respondent

Mr Edward Fitzpatrick (instructed by Edwards Duthie) for the Appellant

Mr Bryan McGuire (instructed by The Borough Solicitors) for the Respondent

Lord Justice Auld

Lord Justice Auld:

1

This is a second appeal on a point of law by Mr Naser Osmani, who comes from Kosovo, against a determination of the London Borough of Camden on 18 th May 2004 that it had no interim duty to accommodate him as a homeless person under section 188(1) of the Housing Act 1996 because he was not in apparent priority need for accommodation as a "vulnerable" person as defined in 189(1) (c) of the Act. The species of vulnerability in question included in the latter provision is "mental illness or handicap … or other special reason".

Introduction

2

The issue raised by the appeal is the application of what is called the Pereira test, namely that stated by this Court in R v Camden LBC, ex p Pereira (1999) 31 HLR 317, namely whether a homeless applicant, eligible for assistance would be, when homeless:

"less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects."

Potter LJ, who gave permission to appeal, did so because he considered that "[t]he impact of the Pereira test in practice is important".

3

Following the Council's initial determination on 18 th February 2003 that Mr Osmani was not vulnerable in that sense and, in consequence, its refusal to secure him and his wife interim accommodation, he requested it to review its decision under section 202 of the Act. For that purpose, he placed before it additional material, including reports as to his vulnerable psychiatric state from Dr Roderick McNicol, his general practitioner, and Ms Kristina Dionisio, a "bi-cultural therapist from the Bosnian Resource Information Centre – Kosovar Support". Whilst the Council was undertaking the requested review, Mr Osmani and his wife were evicted from their privately rented accommodation, and the Council subsequently provided them with temporary accommodation pending completion of its review. On 25 th July 2003 the Council, having considered the further information, confirmed its earlier determination.

4

Mr Osmani then appealed to the County Court on a point of law under section 204 of the Act. The matter came before Ms Recorder Eady, sitting in the Central London County Court, who, on 3 rd March 2004, quashed the Council's decision. As a result, the Council was required to conduct a further review under section 202. For the purpose, it requested further assessments from Dr McNicol and Ms Dioniso, which they provided. The Council, having considered the further material, again determined that Mr Osmani was not a vulnerable person as defined by section 189(1) (c) and, therefore, again refused his application for assistance.

5

Mr Osmani then appealed for the second time to the County Court under section 204, raising as points of law that the Council, in making its determination, had not properly applied the Pereira test in that it had not considered, or considered adequately, the likely effect on his frail psychiatric condition of his becoming homeless as distinct from his current state when not homeless and/or that it had not adequately explained its reasons. The Judge, His Hon. Judge Crawford Lindsay QC, in accordance with the ruling of this Court in Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306 and of the House of Lords in Runa Begum v Tower Hamlets LBC [2003] 2 AC 430, considered the matter as if it were an application for judicial review of the Council's determination. On that basis, whilst expressing some unease on the merits of the determination, he dismissed the appeal because he did not consider it to be Wednesbury unreasonable or otherwise unlawful.

6

The matter now comes before this Court essentially by way of challenge of the Council's determination, Mr Osmani, maintaining, as he did before the Judge, that it had not properly applied the Pereira test in that it had not considered, or considered adequately, the effect on his frail psychiatric condition of his becoming homeless as distinct from his current state when not homeless and in temporary accommodation provided by the Council.

The facts

7

The facts of the case in a little more detail are as follows.

8

Mr Osmani was born in Pristina, in Kosovo. In 1996 he was arrested by the Yugoslav authorities and taken to prison. He remained in prison for 18 months, during which time he was subjected to severe beatings by the police and was refused visits from family or friends. He was deeply disturbed by his experiences, and, following his release, spent several weeks as an in-patient at a psychiatric hospital in Kosovo.

9

Mr Osmani was quickly re-arrested by the Serbian Authorities and was due to serve a second prison sentence. Because of this, and fearful that he would not survive another period of imprisonment, his family managed to secure a passage for him out of Kosovo. He arrived in the United Kingdom in August 1998 and went to live with family members in North London. In late 1999 he was granted indefinite leave to remain, and, in May 2001 his wife came from Kosovo to join him here. In October 2001, they moved into private rented accommodation in London where they remained until early 2003. In January 2003 their landlord served them with notice to quit.

10

On receipt of the notice to quit, Mr Osmani applied to the Council under Part VII of the 1996 Act for assistance to himself and his wife as vulnerable persons threatened with homelessness. As I have indicated, on 18 th February 2003 the Council notified him of the outcome of its inquiry under section 184 of the Act into his eligibility for assistance and as to what, if any, duty it owed him, and of its conclusion that, although he was threatened with homelessness and eligible for assistance, he did not qualify as "vulnerable" under section 189(1) (c) and, therefore, did not have "a priority need for accommodation" under section 188(1).

11

Mr Osmani requested a review of the decision and sought legal advice. In April 2003 solicitors whom he instructed wrote to the Council informing it, among other things, that Mr Osmani suffered from mental health problems and that such problems had been recognised by the Social Security Appeals Tribunal. The solicitors requested immediate provision of housing for him and his wife.

12

On 8 th April 2003, whilst the Council was reviewing its decision, Mr and Mrs Osmani were evicted from their privately rented accommodation. As I have said, the Council subsequently provided them with temporary accommodation whilst it continued with the review, obtaining, as I have also said, information from Dr McNicol and Ms Dionisio. Dr McNicol reported that Mr Osmani suffered from back pain, was depressed and that his mental state was deteriorating. He indicated that stability and an area of quiet/secure accommodation were required. Ms Dionisio diagnosed him as suffering from post-traumatic stress disorder and a major depressive disorder. She expressed the view that he was a vulnerable person on the grounds of mental illness and that, as such, he needed help with his accommodation in order that his mental health did not deteriorate further. Also, on 25 th July 2003 the Council wrote to Mr Osmani confirming its earlier decision that he was not considered to have a priority need by virtue of vulnerability. On 5 th August Mr Osmani requested a further review under section 202 of the Act. On 15 th September the Council notified him that that it adhered to its earlier determination.

13

Following Mr Osmani's successful appeal in early March 2004 to Ms Recorder Eady under section 204 of the Act, the Council then conducted, as I have said, a further review under section 202 requesting for the purpose, further medical and psychiatric assessments from Dr McNicol and Ms Dionisio, both of whom confirmed their earlier reports.

14

Dr McNicol wrote about Mr Osmani's continued treatment for, among other things, depression and post-traumatic stress disorder, but stated that he was fully functional save for language problems. He also stated, under the heading of "Current diagnosis and relevant past medical history that is affected by current housing":

"… His continued homeless situation is persisting in exacerbating all of the above in my opinion. It is increasing his level of stress which risks making him more unwell and leading to a deterioration in his depressive symptoms and post-traumatic stress. Furthermore the above is making it difficult if not impossible for him being able to secure or find permanent accommodation. To leave this man without a secure place to live puts this man's mental health at serious risk."

And, under the heading "Prognosis", he wrote:

"Poor if does not find or is not found suitable accommodation in the very near future"

15

Ms Dionisio included the following in a lengthy report:

"2. Mr Osmani remains acutely symptomatic. He continues to present with a large number of symptoms of PTSD and Major Depressive Disorder (MDD) …… In my opinion, he is a vulnerable person on the grounds of his impaired mental health.

3. …Suicidal ideation is present but it has been...

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