Patrick Kanu v The London Borough of Southwark

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Lord Justice Kitchin,Lord Justice Aikens
Judgment Date29 July 2014
Neutral Citation[2014] EWCA Civ 1085
Docket NumberCase No: B5/2013/3615
Date29 July 2014
CourtCourt of Appeal (Civil Division)

[2014] EWCA Civ 1085

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Lambeth County Court

Mr Recorder Matthews

3LB00797

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Aikens

Lord Justice Kitchin

and

Lord Justice Underhill

Case No: B5/2013/3615

Between:
Patrick Kanu
Appellant
and
The London Borough of Southwark
Respondent

Ms Catherine Rowlands (instructed by Southwark Legal Services) for the Appellant

Mr Zia Nabi (instructed by Cambridge House Law Centre) for the Respondent

Hearing date: 20 May 2014

Lord Justice Underhill

INTRODUCTION

1

This is an appeal by the London Borough of Southwark ("the Council") against a decision of Mr Recorder Matthews in the Lambeth County Court dated 22 November 2013. The Recorder quashed a decision of the Council's review officer under section 202 of the Housing Act 1996 to uphold its earlier decision that the Respondent, Mr Kanu, was not in priority need for accommodation within the meaning of section 189 (1) of the Act. The Council has been represented before us by Ms Catherine Rowlands and Mr Kanu by Mr Zia Nabi, both of whom appeared below. Their submissions were of high quality.

THE FACTS

2

Mr Kanu is aged 47. Although he is a national of Sierra Leone, he has lived in this country for many years and has indefinite leave to remain. He is married. He has a son, now aged 21, from an earlier relationship.

3

Until November 2011 Mr and Mrs Kanu were living in private rented accommodation; latterly their son was living with them too. Mr Kanu was on the Council's housing list. In 2009 he applied for "medical priority" which would entitle him to be placed in a higher band on the list. In June 2011 he made an application for accommodation on the basis that he was homeless, but this was refused on the basis that he was not (at that stage) homeless. In connection with those applications he completed a medical assessment form giving details of various medical conditions from which he was suffering. He also submitted letters from his medical notes, emanating both from the GP practice with which he was registered and from various hospitals. These revealed, in summary, that he suffered from hepatitis B (though this was chronic and not causing any acute symptoms); back pain as a result of previous surgery, which affected his mobility; high blood pressure; and haemorrhoids. The Council's internal Medical Assessment Service reported that he should be accorded medical priority and be placed in band The assessment dated 1 July 2011 includes the observation that:

"The information already with our service and the information provided by the applicant result in this chap being at greater risk than many if street homeless. This assessment has been carried out on the assumption the applicant is homeless."

This assessment did not, however, result in a property being offered to him.

4

In September 2011 Mr Kanu was given notice to quit, and on 12 October the County Court issued an eviction notice effective on 11 November. The landlord was entitled to possession not because of any default on the part of Mr Kanu but because he required the property for redevelopment. On 3 November Mr Kanu re-applied to the Council's Housing Department on the basis that he was threatened with homelessness and was in priority need. He completed a housing needs assessment form. Following his eviction he was placed in temporary accommodation in a hostel pending a decision by the Council on his homelessness status; and that remains the position.

5

Mr Kanu was interviewed on 7 December 2011 by an Assessment Officer. His wife was interviewed the following day. The interviews, of which notes were made, covered various aspects of his ability to cope if made homeless.

6

In his interview Mr Kanu referred to the medical problems of which the Council already had details from his earlier application. He also, however, referred to the fact that he had a mental disorder, involving suicidal feelings, for which he was receiving outpatient hospital treatment including medication. He submitted a further medical assessment form. On 28 December the medical assessment service provided a further recommendation addressing specifically Mr Kanu's mental health. It referred to the form which he had submitted together with a small number of reports/letters. The assessment is poorly written and set out, but in answer to the question "what impact does the medical issue have on the applicant's ability to carry out tasks of daily living?" it says:

"This chap has a clear direct reaction to the stated hallucinations which result in harm to self (this could lead to harm to others). This action would greatly inhibit his ability to care for self in conducting his day-to-day activities."

There is a note a little further down that "this assessment has been carried out on the assumption the applicant is homeless". The recommendation is for "medical priority to the level of band three", which "would increase to band two if HP [that is, housing priority] was issued".

7

By letter dated 9 January 2012 Mr Kanu was notified that the Council had decided that he was homeless within the meaning of Part VII of the 1996 Act but that he was not in priority need within the meaning of section 189 of the Act. The letter is lengthy and I need not set it out here. In short, it acknowledged the various health conditions from which Mr Kanu was suffering, but it said that these were well-controlled by medication and that the evidence, including the interview evidence, showed that, with the help of his wife and son where necessary, he was able to cope with day-to-day living and would be able to fend for himself as well as an ordinary homeless person: accordingly he was not viewed as vulnerable within the meaning of section 189 (1) (c).

8

By letter dated 20 January 2012 the Law Centre acting for Mr Kanu wrote to the Council requesting a review pursuant to section 202 of the 1996 Act. Representations in support of the application were made by letter dated 23 March. These referred to the views expressed by the Medical Assessment Service and to continuing medical evidence that he was suffering psychotic symptoms.

9

The Council's Review Officer replied on 3 April 2012 with an eleven-page "minded to" letter setting out the basis on which it had reached its earlier conclusion and inviting representations in response by 16 April. Although there was an extensive review of the medical materials the principal point made by the Officer was that Mr Kanu's wife and son constituted "a stable support network that will stay with him and advocate on his behalf if he is faced with street homelessness". The Law Centre replied briefly to the minded to letter, complaining of what it said was an irrational approach to the medical evidence, but it did not address the Review Officer's point about Mr Kanu's support network.

10

By letter dated 17 April 2012 the Review Officer upheld the original decision for essentially the reasons given in the minded to letter.

11

Mr Kanu appealed against that decision pursuant to section 204 of the Act. On 7 November 2012 HH Judge Blunsdon in the Lambeth County Court quashed the Review Officer's decision. I need not set out here his reasons for doing so, save to note that one of them was that she failed to make any reference in her decision letter to the public sector equality duty to which the Council was subject by virtue of section 149 of the Equality Act 2010.

12

The Council was accordingly obliged to repeat the review process. The same Review Officer undertook the review. There was a further lengthy "minded to" letter, dated 18 February 2013, which again expressed the provisional view that Mr Kanu was not in priority need: it broadly corresponds to the eventual final decision. The Law Centre responded on 25 February, though not at great length. It repeated the essential case that Mr Kanu was vulnerable because of both mental and his physical ill-health. It said that "Mr Kanu does not have an effective support system: if he had he would have been able to find accommodation". It complained that the reference now made to the public sector equality duty was inadequate. Some further documents relating to Mr Kanu's health were enclosed.

13

For the purpose of the further Review the Officer had available to her various materials post-dating her earlier assessment. These included two reports, one dated 5 June 2012 from Dr Isaac, a consultant psychiatrist instructed by the Law Centre, and the other dated 18 June 2012 from another consultant psychiatrist, Dr Pearson, to whom Mr Kanu had been referred by his GP, together with further correspondence from the GP. I should set out the key passages from the two consultants' reports.

14

The concluding section of Dr Isaac's report reads as follows:

" Diagnosis

52. Diagnosis is far from straightforward here.

53. The most obvious diagnosis is of major depression with psychotic features. However, there are inconsistencies in Mr Kanu's account and I cannot escape the impression that he exaggerates his symptoms.

54. Nevertheless, psychiatric symptoms can neither be refuted nor confirmed objectively. There are no blood tests or brain scans, for example, which allow a diagnosis to be made.

55. I could not find that the psychotic symptoms, chiefly of auditory hallucinations and, in an isolated sense, visual hallucinations ("birds"), formed part of a systemised psychotic state, though they appear to be mood congruent and occur in the context of suicidal ideation.

56. I could not find evidence that Mr Kanu has taken these thoughts of self-harm any further or acted on them. There is...

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  • Hotak v Southwark London Borough Council; Kanu v Southwark London Borough Council; Johnson v Solihull Metropolitan Borough Council
    • United Kingdom
    • Supreme Court
    • 13 May 2015
    ...Lady Hale, Deputy President Lord Clarke Lord Wilson Lord Hughes THE SUPREME COURT Easter Term On Appeal From: [2013] Ewca Civ 515, [2014] Ewca Civ 1085 and [2013] EWCA Civ 752 Appellant (Hotak) Paul Brown QC Heather (Instructed by Centre 70 Advice Centre) Appellant (Johnson) Jan Luba QC ......
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    • Court of Appeal (Civil Division)
    • 8 April 2020
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  • Legal Compliance in Street‐Level Bureaucracy: A Study of UK Housing Officers
    • United States
    • Law & Policy No. 38-1, January 2016
    • 1 January 2016
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