Sheridan and Others v Basildon Borough Council (formerly Basildon District Council)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,The Chancellor of the High Court,Lord Justice Patten |
| Judgment Date | 21 March 2012 |
| Neutral Citation | [2012] EWCA Civ 335 |
| Docket Number | Case No: B5/2011/1369, B5/2011/1370 and B5/2011/1368 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2012 |
[2012] EWCA Civ 335
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHEND ON SEA COUNTY COURT
HH Judge Peter Dedman
Royal Courts of Justice
Strand, London, WC2A 2LL
The Chancellor of the High Court
Lord Justice Patten
and
Lord Justice Pitchford
Case No: B5/2011/1369, B5/2011/1370 and B5/2011/1368
0BQ00819, 0BQ00930 and 0BQ00931
Mr Alex Offer (instructed by Davies Gore Lomax LLP) for the Appellants
Ms Galina Ward (instructed by Basildon Borough Council) for the Respondent
Hearing date : 29 th February 2012
Introduction
The common issue raised by these three appeals is whether Basildon Borough Council ("the Council") has discharged its duty under s.193(2) of the Housing Act 1996 ("the 1996 Act") to provide suitable accommodation for occupation by the appellants. Each of the appellants is an Irish traveller. Until recently they lived on the unauthorised site at Dale Farm which was cleared last year. This followed unsuccessful challenges by the residents to the Council's decision to take direct action pursuant to s.178 of the Town and Country Planning Act 1990 ("the 1990 Act") in support of enforcement notices served to prevent infringement of the planning controls over the development of green belt land: see Basildon District Council v McCarthy [2009] EWCA Civ 13. Mr and Mrs Sheridan and their children are living temporarily (but illegally) on the authorised site at Dale Farm. Mrs Flynn has remained in her caravan on the entrance road to the site.
It is common ground that all three appellants are eligible for housing assistance; are not intentionally homeless; and are in priority need. The provisions of s.193 of the 1996 Act therefore apply: see s.193(1). Section 193(2) provides that:
"Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant."
The discharge of that housing duty must be performed in accordance with s.206(1) which provides that:
"A local housing authority may discharge their housing functions under this Part only in the following ways—
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person."
In this case there is no prospect of suitable accommodation being provided by a third party and the Council therefore made offers to all three appellants of accommodation from within its housing reserve. I should mention at this stage that Mr and Mrs Sheridan are separated and they made separate housing applications (in Mr Sheridan's case as a single person) rather than an application to be accommodated together.
On 23 rd September 2009 Mr Sheridan was offered a one-bedroom flat at 49 Eldeland, Basildon. On 14 th October 2009 Mrs Sheridan and her three children were offered a tenancy of a three-bedroom house at 20 Southwell Link, Laindon. On 25 th November 2009 Mrs Flynn (with her late husband) was offered a one-bedroom flat in sheltered accommodation at 28 Bartlow Side, Pitsea.
All of the appellants rejected the accommodation offered as unsuitable and requested a review of the Council's decision that it was suitable for the purpose of discharging its duty to them under s.193(2). A right to review such a decision is conferred on an applicant by s.202 of the 1996 Act (see s.202(1)(f)) and, on receipt of a request, the housing authority must review its own decision: see s.202(4). The review is normally carried out by a senior housing officer who was not involved in the original decision and an applicant who is dissatisfied with the review decision has a further right of appeal to the County Court on a point of law under s.204 thereby rendering the review procedure Article 6 compliant: see Begum (Runa) v London Borough of Tower Hamlets [2003] UKHL 5.
In the case of each of the appellants the request for a review was made on the sole ground that the appellant had an aversion to bricks and mortar accommodation. In the case of Mrs Flynn, this was put largely on cultural grounds. There is no suggestion that she will suffer any physical or psychiatric harm if she is compelled to take up the offer which has been made. But in the case of Mr and Mrs Sheridan, the Council's review panel was provided with psychiatric reports prepared by Dr Mark Slater who is a consultant psychiatrist to the Hertfordshire Partnership NHS Foundation Trust and has specific experience in treating travellers with mental health problems.
His report on Mr Sheridan was based on an interview with him in December 2009. As Dr Slater sets out in his report, Mr Sheridan was born in April 1977 to a family of Irish travellers. He received no formal education and is illiterate. He is married with three children but, as mentioned earlier, is now separated from his wife. However, they continued to live on the same plot at Dale Farm and he has remained dependent on Mrs Sheridan for support and assistance. He has two brothers and three sisters who also live locally to Dale Farm with their own families.
Mr Sheridan has a number of medical and psychiatric problems. He has diabetes as well as raised cholesterol and high blood pressure. These conditions are exacerbated by excessive drinking, smoking and, on occasions, the use of cannabis. He is also extremely overweight. Dr Slater says in his report that Mr Sheridan is also prone to depression which can be triggered by anxiety or a sense of loss. A particularly difficult time for him occurred after the death of his parents in the 1990's. Mr Sheridan says that he began drinking heavily; could not sleep; and had thoughts of killing himself. He was admitted to hospital in a diabetic coma but then had no alcohol for six or seven months.
When asked by Dr Slater about his impending move from Dale Farm and the possibility of his being accommodated in bricks and mortar accommodation he gave several different responses. He told Dr Slater that he could not survive if he was forced to move out and away from his wife and children because he would be unable to manage his medication and would probably drink himself to death. He also complained that he would not be able to see as much of his family. Although he referred to not wanting to live in bricks and mortar, he did not suggest in terms that this would have a serious impact on his mental health in itself. The recurring theme in all his reported complaints is that, without the close support of his wife and family, he would be unable to manage his medication and his life would collapse.
Dr Slater expresses the opinion that Mr Sheridan is of low intelligence bordering on a mild mental impairment. He is therefore less competent in dealing with ordinary aspects of life including taking his own medication. For the same reason, he is more vulnerable to stress and depression than most. Dr Slater believes that Mr Sheridan's former dependence on his parents may have been transferred to his wife who has taken charge of various aspects of his life including the management of his medication.
Mr Sheridan has been on antidepressant medication since his discharge from hospital after his diabetic coma. Dr Slater says that it is unclear what type of depression Mr Sheridan had and that it is more likely that it is reactive in nature rather than a kind of depressive illness. His medical history from 2002 (when he registered with a new GP) indicates bouts of depression occurring irregularly over a six year period. He is therefore likely to be at risk of further periods of depression. Dr Slater says that:
"The risk would be particularly high at times of stress, and especially if he lost the support he receives from his wife and siblings, had reduced contact with his children, and was living in an isolated setting alien to his culture.
19.18 The prognosis for his drinking is that his alcohol intake will increase dramatically at times of stress, especially if the containing influence of his wife is not there.
19.19 Mr Sheridan has limited understanding of his diabetes, is poorly organised and has low motivation to manage his diabetes effectively. Although only 32 years old, he also has raised cholesterol and blood pressure and is extremely obese. Without adequate support, in particular someone to supervise his medication, his physical health would deteriorate.
19.20 The depression, drinking, and poor diabetic control would all worsen each other, leading to a recurrence of the life threatening condition Mr Sheridan had after the death of his parents.
19.21 Mr Sheridan reports that he comes from an Irish traveller background, has always lived in caravans and mobile homes, as have all his family. He describes how several of his siblings live on the same site and says how distressed and unable to cope if he were to lose the support of his wife. I have no reason to disbelieve his account.
19.22 Mr Sheridan has a general aversion to bricks and mortar accommodation, and this is in keeping with his cultural background.
19.23 I believe that if Mr Sheridan was forced to move to any bricks and mortar accommodation his mood would deteriorate as a direct result. Secondary effects would be the loss of the social and practical support he currently receives from his wife, siblings and others on the site. It would also be more difficult for him to maintain contact with...
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