Samin v Westminster City Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Hughes,Lord Justice Etherton,Lord Justice Tomlinson
Judgment Date21 November 2012
Neutral Citation[2012] EWCA Civ 1468
Date21 November 2012
Docket NumberCase No: B5/2012/0996

[2012] EWCA Civ 1468

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

His Honour Judge Mitchell

ICL 40142

Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

Lord Justice Hughes

Lord Justice Etherton

and

Lord Justice Tomlinson

Case No: B5/2012/0996

Between:
Wadi Samin
Appellant
and
City of Westminster
Respondent

David Carter and David Cowan (instructed by Miles & Partners LLP) for the Appellant

Ian Peacock (instructed by Westminster Legal and Democratic Services) for the Respondent

Hearing dates : Tuesday 21st August 2012

Lord Justice Hughes
1

This appeal from the County Court in a Housing Act case depends on the extent to which migrants from EU countries are entitled to benefit support in this country. The defendant council determined that the claimant was not entitled to housing provision under the homelessness provisions of Part VII of the Housing Act 1996. The Reviewer, to whom he applied under ss 202–203, agreed. The Circuit Judge, to whom he appealed on a point of law under s 204, held that the Reviewer had not made any error of law. He now has permission to bring this second appeal to this court.

2

There appears to be no doubt that Mr Samin is homeless within the meaning of the Act. The issue in the case is whether he is or is not entitled to the benefit of the Act. In summary, he is if he is a migrant worker from another EU country, exercising his EU rights as an Austrian citizen to work in another country. Otherwise he is not. The UK regulations which govern his situation transpose an EU Directive. As will be seen, in the end the test for eligibility is whether he is or is not "temporarily unable to work as a result of an illness or accident": see Reg 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, 2006 No 1003. The Council and the Reviewer determined that he was not. The question for this court is whether the Reviewer made an error of law in doing so or was entitled in law so to determine.

3

There is it seems no document setting out any instructions or assertions from Mr Samin, but there are records of what he has told various people enquiring about his situation, including the Council which had a duty under s 184 of the Housing Act to make enquiries into his claim. He was born in Iraq in 1960 and so is 52. He married there. After something like 10 years service in the Iraqi army, he and his wife together with their 5 or 6 children left that country in about 1992 and sought asylum in Austria. His application was granted and he achieved Austrian citizenship in about 1993. His account is that he worked in various situations in Austria although there is no documentation or other confirmation, nor is there any evidence for how long. At some stage his marriage broke down and he became completely estranged not only from his wife but from all their children. In December 2005 he left Austria and travelled alone to England, where he has lived since, also alone. He has told various interviewers that he worked for a period of about 10 months in all. His last job was as a part-time office cleaner working 16 hours per week. He lost that job in 2006. He has told people who have enquired that he was "asked to leave", but no more than that is known. He has not worked since. He has also said in the past that he worked for about three months "painting" before doing the office cleaning job, although what kind of work that was, assuming it occurred, is obscure.

4

Mr Samin has been assessed by a number of people for the purpose of this application and otherwise. He is in poor health. His principal illness is clinical depression of some longstanding, which is attributed by those who have treated him mainly to prolonged traumatic experiences in the Army, in the course of one or more of the wars in which Iraq was then engaged. He reports severe nightmares and flashbacks, feelings of hopelessness, confusion and lack of concentration, all of which led to the diagnosis of chronic PTSD together with clinical depression. He has attempted to take his own life since he has been in England, by overdosing on his medication. That was in or about 2007 but the report of his principal treating clinical psychologist, Ms Smit, considered in August 2010 that he was in very low mood and, although with no present plans to harm himself, remained a moderately high risk of suicide in the medium term. He is socially isolated with no family or other social contacts at all. At the time of that report he had had about eight months of 1:1 psychological support counselling. It seems that that came to an end at or about that time, either for want of resources or because it was not accomplishing anything in the absence of stable accommodation. The depression aside, he is not in good health at all. He has diabetes, high blood pressure leading to transient ischaemic attacks and kidney stones. He has also reported a need for physiotherapy to one of his legs. He is maintained on a cocktail of drugs which include anti-depressants.

5

After an initial short period living in a room in North London, Mr Samin took a private tenancy of a self-contained one room studio flat – in, it appears, about June 2006. He lived there until the Summer of 2010 when he received a lawful notice to quit, which resulted in his having to give up possession in August of that year. The occasion for the notice to quit is not in evidence. It cannot have been non-payment of rent because the rent of £150 per week was then being paid by Housing Benefit, and there is no suggestion that he in any way brought eviction upon himself. That led to the application to the Council for housing under the homelessness provisions of Part VII of the Housing Act 1996.

6

Since he lost the part-time office cleaning job in 2006, Mr Samin has not worked at all. He signed on at the job centre for a while until sometime in 2007 but since then has not been looking for work. Since losing the job he has been supported by State benefit, initially jobseekers' allowance but since 2007 either income support or incapacity benefit. Housing Benefit has paid his rent, and his medical needs have been provided by the National Health Service.

7

Such evidence as there was as to the prognosis was contained in the evidence of Ms Smit, the treating psychologist, together with a short endorsing note from Mr Samin's GP, some assertions on behalf of Mr Samin by his solicitors and his own statement of his current position to the Reviewer.

8

Ms Smit concluded in Summer 2010 that Mr Samin had no social contacts and no routine to his life, even as to eating and sleeping. She advised that complete recovery was unlikely, given the events which he had experienced. It was possible, she said, that with a more stable environment he might improve his mood but she suspected that he "will continue to have a significant degree of dysfunction." That view was shared by his General Medical Practitioner, Dr Tate, who advised that "complete recovery is unlikely but he can improve." At much the same time (September 2010) Ms Smit directly addressed the question of any possible return to work. She said this:

"In my opinion if Mr Samin was able to obtain secure and stable accommodation this will impact positively on his mental health but it is not the sole factor underlying his difficulties… With an improvement in his home situation, and ability to engage in appropriate treatment I would expect that Mr Samin's mental health would improve and with further support from a suitable agency I would expect that he could return to some form of fruitful employment. However this is not something that is likely for him in the present context, or in the short-term."

It was no doubt true that the uncertainty over accommodation would worsen Mr Samin's depression, but equally plain that this could not be the main factor. His depression was chronic. It originated over 20 years earlier. He had been unable to work for some four years before there was any threat to his home.

9

Mr Samin has had solicitors acting from the outset of his application. They said, on his behalf, in a letter to the Council on 31 Aug 2010:

"…there is no prospect in the immediate or long-term future of our client securing employment, in view of his health condition."

That seems to have been said in the context of refuting a suggestion that Mr Samin needed assistance to obtain employment, but it was clearly a considered response nevertheless. True it is that only the following day the Solicitors said something quite different, namely that

"…there is a prospect of our client returning to work in the future."

Quite how it came about that those two directly contradictory statements were made was not explained, either in the second letter or subsequently. The Reviewer did not refer to either. She did, however, speak to Mr Samin himself. By then it was over a year later, in November 2011. There was still no sign of his seeking work. He told her that he did not (then) feel able to return to work. The Reviewer knew that the psychological counselling course had finished some months previously, and that there was no sign of the wholly unspecified form of 'agency support', of which Ms Smit had spoken a year earlier, materialising. He has been specifically assessed to see whether he needs care in managing his affairs or in daily living and he does not.

The law

10

This case does not concern the various questions which often arise under the Housing Act when an application for accommodation is made under the homelessness provisions. It depends on whether Mr Samin is or is not eligible for the social benefit support given by...

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