A Deputy High Court judge has quashed a decision by a borough council to refuse a claimant’s second homelessness application, after it failed to take into account new medical evidence.
In Bukartyk, R (on the application of) v Welwyn Hatfield Borough Council  EWHC 3480 (Admin) the claimant challenged the defendant council's decision of 9 October 2019, refusing to accept her homelessness application pursuant to sections 183 and 184 of the Housing Act 1996; and refusing to provide her with suitable interim accommodation under s.188(1) of the Act.
This was not the first homelessness application that had been made by the claimant, and Welwyn Hatfield’s decision of 9 October stated that there were "no relevant new facts that were not known about at the time we dealt with your previous application, or that any new facts presented are trivial".
Sam Grodzinski QC, sitting as a Deputy High Court judge, said the key issues in the claim were whether the defendant council’s decision complied with the relevant legal principles concerning second applications, in particular as set out in the decision of the Court of Appeal in Rikha Begum v Tower Hamlets LBC  1 WLR 2103; and whether the decision was a rational one on the facts before the defendant.
The claimant’s primary case was that in light of the new medical evidence which was provided to the defendant in support of her second application, it was irrational for the council to conclude in the 9 October Decision that there were no new facts, or that such facts were trivial or fanciful. Alternatively, counsel for the claimant submitted that the defendant failed to have proper regard to the relevant medical evidence.
He also submitted that in the 9 October decision, the council’s Housing Options Manager went beyond considering whether there was a valid fresh application, and strayed into considering whether the claimant had established a priority need, without first conducting the necessary inquiries under s.184 of the Act.
Judge Grodzinski said: “In assessing these submissions, it is important to recall that the express basis of the earlier review decision of 9 September 2019 was that while the claimant had asserted that she mental health problems, she had provided no evidence in support, and had refused the attempt to refer her to a mental health team. The review decision referred on several occasions to the absence of supporting medical evidence; and stated that the claimant had ‘no medical issues’. Yet in her second application, the claimant had provided such evidence, in the form of the prescription and the three letters [including from a Speciality Doctor in Psychiatry] referred to…..
“Thus on the face of the 9 October Decision, it is in my judgment very difficult to see how the defendant could rationally conclude that the new medical evidence disclosed no new facts, or could regard such facts as trivial or fanciful.”
The judge noted how the Housing Options Manager, when he came to consider each item of the recent evidence in the four numbered paragraphs on the last page of the 9 October Decision letter, “he did not state, let alone explain why, the facts revealed in the recent medical evidence were not new, or were trivial.
“Rather, he stated again…. that the information ‘would not lead to a change in the decision that you are not in a priority need’."
Judge Grodzinski said this approach clearly conflicted with the guidance in Rikha Begum for two related reasons. “First, because it fails to analyse whether the facts were new or (if not new) trivial, contrary to the guidance in Rikha Begum at  – ; and second because it focusses instead on the separate question whether those facts will establish that the claimant was vulnerable and thus in priority need, contrary to the guidance in Rikha Beghum at .
“That latter question is one that has to be addressed when the defendant carries out its s.184 inquiries, and not at the prior stage of deciding whether there is an effective application in the first place.”
The judge said he agreed with the submission of counsel for the claimant that the approach taken in on the final page of the 9 October Decision Letter "cherry picked" certain parts of the medical letters.
“In my judgment it cannot be appropriate, when a housing authority is discharging its public law duty conscientiously to assess whether there are no new facts (and to assess whether any such facts are trivial or fanciful) to focus just on those parts of the evidence which are favourable to such a conclusion, and to ignore those that point against it,” he said.
The judge rejected the submissions of counsel for Welwyn Hatfield in defending the 9 October decision that (a) the additional evidence revealed no more than "low level" mental health issues; and (b) that such issues had already been known to, or at least suspected by, the defendant at the time of the review decision.
This was for two related reasons, the judge said. “First, as noted above, the whole basis of the review decision was that the claimant had failed to produce any evidence to support her claim to be suffering from mental health problems, and the defendant concluded that the claimant had ‘no medical issues’. The Review Letter did not say that the defendant understood the claimant to be suffering from low level mental health problems but that these were insufficient for her to have a priority need within s.189(1)(c) of the Act.
“Second, the 9 October decision itself neither stated nor implied that the defendant had, in reaching the earlier review decision, taken into account that the claimant had mental health problems (low level or otherwise). It is important to recall that, as Neuberger LJ's judgment in Rikha Begum explains at , what is relevant is whether the facts were ‘known to, and taken into account by’ the authority on the earlier application. There is nothing in either the review decision, or the 9 October Decision, to support that conclusion.”
Judge Grodzinski also rejected the council’s contention in its skeleton argument that because the claimant had an ongoing statutory appeal to Luton County Court against the review decision, the claim for judicial review should be dismissed because the claimant had an alternative remedy.
“In my judgment, the s.204 appeal to the county court against the defendant's review decision would not provide the claimant with an alternative remedy, for the simple reason that that court will not be able to consider the new medical evidence referred to above. Rather, the county court will be confined to considering whatever material was before the defendant at the time of the review decision. [Counsel for Welwyn Hatfield] accepted that this was the case, and in fairness to her did not press the alternative remedy argument with much force at the hearing.”
Welwyn Hatfield had sought to argue too that because the claimant had recently been provided with accommodation by the YMCA, pursuant to a licence agreement, the appeal was academic.
Counsel for the local authority accepted, however, that it could not be said with certainty that the defendant would conclude that the claimant was neither homeless nor threatened with homelessness.
The judge said: “In that context, it is relevant that under s.175(4), a person ‘is threatened with homelessness if it is likely that he will become homeless within 56 days’. As noted above, the Licence provides that ‘the YMCA can end this Licence at any time, although normally the Licensee will be given not less than 7 days' notice in writing’. As also noted above, the current plan is to review the claimant's position at the end of three weeks. Thus there is clearly at least some risk of the claimant being made homeless in less than 56 days.”
The judge did say, however, that the fact that the claimant currently had accommodation did affect the question of relief.
Judge Grodzinski said he considered it to be appropriate to quash the decision of 9 October 2019, and to direct Welwyn Hatfield to treat the claimant's second application as an effective application.
“Of course the defendant will, in deciding how to deal with the claimant's case, have to take into account all current circumstances, both as they relate to whether she is or may be homeless or threatened with homelessness (which will include the circumstances relating to her YMCA accommodation), and as to the question of whether she is vulnerable (which will include the additional medical evidence referred to above),” he added, saying he did not consider it was necessary or appropriate to go further.