Background
The claimant had been granted asylum in the UK after a General in the Congolese Army raped her. Her husband and parents were subsequently killed.

The claimant was housed in NASS Accommodation in Middlesbrough, where she suffered harassment from a gang of local men who followed her to her home address. This resulted in daily police patrols.

Upon being granted asylum, she remained in Middlesbrough and was moved to a housing association flat in June 2017. In June/July 2017 the neighbour from the adjoining flat entered her property through the window and went through to her bathroom where she was naked. The claimant continued to see the neighbour and in August 2017 moved to a friend’s address in London.

The claimant was referred via her medical centre to a consultant psychiatrist. Her first report addressed the trauma suffered in the Congo; the incidents in Middlesbrough; symptoms of PTSD and a severe depression; and concluded that she would not be able to return to Middlesbrough.
The claimant made a homelessness application to the defendant.

Relevant legislation
Part VII of the Housing Act 1996 sets out the statutory framework for homelessness applications.

Section 184 provides that a housing authority is under a duty to make enquiries to satisfy itself whether the applicant is eligible for assistance and whether any duty, and if so, which duty is owed.

Under s.191, a person is intentionally homeless if they deliberately do or fail to do anything that results in their homelessness, where it would have been reasonable to continue occupation.

Section 177 provides that ‘[i]t is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him…’.

Litigation history
The defendant refused the homelessness application by letter dated 05.08.18. It found that the claimant was intentionally homeless, relying upon the condition of the property and its affordability. It acknowledged the Public Sector Equality Duty and found there to be no evidence that the claimant lacked capacity to understand the consequences of moving out of her flat.

The claimant applied for review. By letter dated 19.11.18 the defendant dismissed the review, referring to the previous reasons and a lack of evidence of risk of violence under s.177.

The claimant made a fresh application in 2019 with a psychiatrist’s updating report. The defendant rejected the application by letter dated 02.01.20, stating that there had been no change in facts and that therefore this did not constitute a new application. The defendant also highlighted the lack of evidence that the claimant’ s mental health had impacted her decision to leave the flat.

The claimant obtained a further report from the consultant psychiatrist, setting out the impact that the claimant’s background trauma would likely have had on her decision to leave the flat. This was passed to the defendant. The claimant’s previous solicitor failed to provide submissions for the review. The defendant did not consider the report and upheld their original decision.

New solicitors for the claimant sought to have the latest psychiatrist report considered. A new application was made and was refused by the defendant by letter dated 17.11.20, on the basis that it was not a fresh application but relied upon the previous facts.

The claimant sought judicial review of the defendant’s decisions dated:

(i)         3.11.20, refusing to withdraw its s.202 review decision dated 28.8.20; and

(ii)         17.11.20, refusing to treat the claimant’s further application for accommodation dated 30.10.20 as a new application.

Case law
The court was directed to R v Harrow LBC, ex p Fahia [1998] 1 WLR 1396, HL where the House of Lords concluded that there was a new application as it was ‘impossible to say that there has been no relevant change in circumstances at all’: p.1402C-E.

The court referred to the decision in R. v. Borough of Tower Hamlets, ex p. Begum [2005] EWCA Civ 340 and highlighted the Court of Appeal’s view that ‘there is no room to imply a further requirement which has to be satisfied, such as establishing a material change of circumstances’ [50].

The court also relied upon the first instance decision of R (Hoyte) v Lambeth LBC [2016] EWHC 1665 (Admin); [2016] H.L.R. 35. Ms Amanda Yip QC, following Begum at [44], stated that ‘[a] person who is presented with evidence but rejects it cannot reasonably say “I knew that all along” when later presented with fresh evidence of the fact alleged’.

Ground 1
The court concluded that the decision of the 17.11.20 was wrong. A reasonable authority could have concluded that the application was a new one. It did not accept the defendant’s submission that ‘a new application is dependent on the occurrence of a new fact or circumstance or event which postdates the original decision’ [50]. Fahia and Begum require assessment of the facts known to the authority at the point of each application.

The court further found that the defendant had bene unduly focussed upon the condition and affordability of the defendant’s flat and the specific statutory factor set down by s.177. They therefore failed to consider the trauma and mental state of the claimant in looking at the reasonableness of her continued occupation of the flat [101].

The terms of the third psychiatrist report went beyond those of the previous reports, which in any event had not been duly considered in the first instance [102-103].

Grounds 2 & 3
These related to the decision of 03.11.20. This fell away as a result of the finding on ground 1. However, the court did conclude that in this case there would not have been sufficient basis to grant relief in respect of the defendant’s refusal to undertake an extra-statutory further review [115].

Ground 4
The court found that the PSED did as a matter of substance require each of the relevant decision-makers to maintain a sharp focus on the claimant’s mental health and consequent protected characteristic of disability as it affected the question of whether it would have been reasonable for her to remain at the accommodation; and in particular on the sub-issue of subjective reasonableness [125]. However, it concluded that this took the case no further as breach of PSED is a point to raise on appeal and provides no independent reason for the court to grant relief in respect of the refusal to undertake an extra-statutory further review [127].

Summary by Parissa Najah, barrister, Trinity Chambers.

For the judgment, click here.