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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Grillo, R (on the application of) v Royal Borough of Kensington and Chelsea [1994] EWHC 7 (Admin) (01 December 1994) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1994/7.html Cite as: [1994] EWHC 7 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		1st December 1994

THE DEPUTY JUDGE:

1. This is an application for judicial review challenging the decision, reflected in two letters of the local authority of 13th and 27th July 1994, in which, having reconsidered the applicant's case for housing under sections 65 and 69 of the Act, the Council affirmed its earlier decision that the offer of a flat on the seventh floor at 26, Markland House, Darfield Way, London, W10, was suitable for occupation by the applicant, her partner and her son.
2. The facts can be stated shortly. This applicant became homeless in 1993 and made an application under Part III of the Housing Act 1985 on 28th July 1993. At that time she and her partner were without any dependant child. The son was born on 1st February 19 94. At that moment the applicant became in priority need under section 5 9 of the Act. The local authority made on 2nd March 1994 an offer of the premises that I have identified. The applicant viewed the premises on 9th March 1994. Having seen the premises, she notified the officer of the Homeless Persons Unit that she could not accept the offer and wished to appeal it. The officer compiled the grounds of appeal on her behalf. The appeal was heard at some time -- it does not matter what the date is -- after 15th March.
3. Prior to dealing with the appeal, the local authority had in fact asked its medical adviser to give his opinion, and on 16th March he provided that and said:

"After consideration of the medical information available to me I am of the opinion that the property offered is suitable in terms of the applicant's medical needs."

4. The information available at that time as to the medical condition was that the applicant suffered from arthritis. That appears in a document which, under the heading "Lift" which becomes the issue in this application, it was said:

"The lift that goes to our floor is out of order and will not be ready for use until September. Ms Grillo has arthritis ...."

5. That is asterisked and the asterisk at the foot of the page indicates "Doctor's note enclosed". There is a letter from the applicant's general practitioner indicating that the applicant suffered from arthritis.
6. The local authority came to the conclusion that the accommodation which was being offered was suitable for the applicant. That was not the end of the matter because the applicant was then seen, at the instigation of the solicitors acting for her, by a consultant orthopaedic surgeon, Mr. John Hollingdale at the Central Middlesex Hospital. He gave an opinion which went into great detail as to the nature of this applicant's arthritis. The matters which are relevant to this application I can quote from Mr. Hollingdale's report. The second report he made was dated 2 0th July 1994, in the course of which he said:"

"With regards to the knees the pain is increased by brisk walking and certainly is greatly exacerbated by having to climb up and down stairs."

There is then this important sentence:

"Indeed anything more than two flights of stairs and she is in quite severe discomfort."

A little later on, towards the end of his report, he deals with the question of actions such as bending, kneeling or climbing stairs, and says they would worsen the symptoms from which she suffers, and then he said:

"In my opinion her symptoms of knee pain will be exacerbated by having to climb two flights of stairs or up to fifteen steps ....."

7. So that anything up to two flights of stairs would probably be all right and anything much more than that and she would be suffering. The earlier report of Mr. Hollingdale indicated that this woman was suffering from an arthritic condition in her knee and said that it would be exacerbated by having to climb several flights of stairs.
8. In the light of that medical evidence, the local authority very properly reconsidered the applicant's case and then wrote the decision letter of 13th July 1994:

"The Council has now considered the report of Dr. John Hollingdale F.R.C.S. and remains of the view that the accommodation offered to your clients at 26, Markland House, Darfield Way, London W10 was suitable for occupation by them and their son.

I set out below the Council's reasons for this:

1. The report of Dr. Hollingdale and the other medical evidence has been considered by the Council's medical adviser and he is of the view that the property was suitable on medical grounds.

Your clients also appealed against the offer of accommodation on the following grounds:

3. The lift was out of order and Ms Grillo would have difficulty managing the stairs due to her arthritic condition.

These grounds were also considered and it was noted that the accommodation offered was within the Council's allocations policy and no reason was seen to depart from this. It was also noted that the lifts in the block were well maintained. It was not felt that any difficulties associated with the property were such as to make it unsuitable."

9. I read the second letter of 27th July 1994. It was from Mr. Sullivan, the Head of Housing Needs:

"I have now considered the further report" that is the report of 2 0th July -- "of Dr. John Hollingdale F.R.C.S. and sought the opinion of the Council's Medical Adviser, and remain of the view that taking all matters into consideration the accommodation offered to your clients at 26, Markland House, Darfield Way, London, W10 was suitable for occupation by them and their son."

10. Miss Astaniotis properly says that I ought to read those two letters together, and I do so for the purpose of the second point which is taken by Mr. Bowen, namely, as to the adequacy and propriety or otherwise of the reasons given by the local authority. I shall come back to that.
11. It is quite clear from those two letters, the one decision letter taking the two together, that the issue that the local authority had to deal with was the relationship of the undisputed evidence of the applicant's medical adviser that she was suffering from this arthritic condition to the question of the lift in the block of flats.
12. It is clear from the evidence that for a period, possibly of five to six months from the time of the offer of the accommodation in March, that one of the two lifts in the building would be out of service due to refurbishment taking place, after which there would be no problem at all, but during that period of five to six months the applicant would have to climb two flights of stairs in order to egress and ingress to and from the flat that was being offered to her.
13. I come to the two points which have been taken by Mr. Bowen on behalf of the applicant. The first is a traditional Wednesbury challenge, that, on the merits, this local authority could not reasonably have offered this property as being suitable for this applicant, having regard to all the circumstances of her life pattern and any other surrounding matters.
14. The whole picture, says Miss Astaniotis, must be looked at, including the highly relevant factor that, on the refurbishment of the lift, there would be no steps for this applicant to negotiate and, in those circumstances, no problem about the suitability of the property, and until then the applicant would have to climb the two flights of steps and, having a sense of proportionality, the local authority were perfectly entitled to take the view that, although they may have some effect upon the physical discomfort the applicant might suffer when having to negotiate the two flights of steps, nevertheless, it is impossible to say that no reasonable local authority could have come to the decision it did. I have no doubt that there may be local authorities, faced with the factual situation that existed in this case, which might come to a different solution and might very well say: "It is not reasonable to inflict upon this applicant the obligation for five to six months of climbing two flights of stairs", but, for my part, I cannot see that this court could interfere with the decision of the local authority that, in all the circumstances and having looked at this case in the round, including the condition of housing stock in this borough, they had come to a decision which was wholly unreasonable.
15. That brings me to the second point which is the question of the giving of reasons on the question of the suitability of the accommodation. Certainly, I think it must be said that the reasoned decision in the letter of 13th July is not entirely satisfactory. It is clear to me that in paragraph 1 the local authority is wholly accepting the medical evidence which was put before it, that there was the problem of the arthritic condition of the applicant, and that that was related to the fact of the lift being out of order for some five to six months. But the fact of the matter is that it is not absolutely clear to anybody reading this letter that the local authority was putting the point, as Miss Astaniotis helpfully puts it now, of indicating the relationship between the lift being out of commission for a short period of time and looking at it in the totality of an accommodation which was going to be permanent for, as far as one could see, the years ahead, and that should have been spelt out in very simple and clear language without having to involve lawyers to do the drafting. It could have been set out in the letter of 13th July, together with the one on the 27th July. I conclude that the letter is, in a sense, inadequate. But is it so inadequate that this court ought, in fairness to the applicant, to uphold the application and send the matter back to the local authority for an explanation? I do not think that is a sensible course of action. It would be an idle exercise, since the applicant knows now precisely what are the reasons for the local authority having come to its conclusion. If it was not known up until about ten minutes ago, I hope that I have now explained it in such a way that the applicant does know the reasons for the Council's decision.
16. That is not the end of the matter, because Mr. Bowen takes a point which does deserve some consideration. He says that the duty to give reasons, which the law requires the local authority to give in a situation where it is rejecting the refusal of suitable accommodation provided for the applicant, is part and parcel of the totality of the statutory obligations of the local authority. If that is so, then they have failed to make a proper offer of accommodation and the decision of the local authority, as reflected in the letter of 13th July 1994, is flawed, and the decision must be quashed and everyone goes back to square one, in the sense that the local authority would then have to decide the matter afresh. In this case, since, no doubt, 26, Markland House, has now been occupied by other tenants, they would have to look for another accommodation to offer to the applicant.
17. If that is the premise upon which Mr. Bowen takes the point, I would concur with the consequences that would flow, but I do not accept the premise that he makes. It is well known that under section 64(4), where a local authority comes to the conclusion that, either a person is not homeless, or that they are not in priority need, or that they are intentionally homeless, the local authority must give notice, together with its reasons. That is a statutory obligation to give reasons. That is part and parcel of the totality of the statutory obligation, but the obligation to give reasons, in a case where the local authority have accepted the homeless person as having qualified for housing accommodation, has been imported into this jurisdiction by the court, in pursuance of the general principle of fairness that must be applied to applicants for housing under the homeless persons legislation. It is not part of the statutory structure. The giving of reasons, as I tried to explain in R. v. London Borough of Lambeth, ex parte Walters (1993) 26 HLR 170, on the question of the suitability of accommodation is, in fact, what I would call free-standing. The giving of reasons in that context is a function outwith the statutory duties under Part III of the Housing Act 1985, but stands quite separate and distinct as an obligation in accordance with the principle of fairness.
18. For those reasons, I would reject the argument advanced by Mr. Bowen that the effect of an inadequate or improper reason in this context, outwith the statutory scheme, has quite different effect from a failure to comply with section 64(4).
19. Having regard to that finding, I come to the conclusion that, while this decision letter is inadequate, I do not think it proper in these circumstances to do anything more than to say what I have said and to give no further relief to the applicant. In these circumstances, this application for judicial review fails.

MISS ASTANIOTIS: The applicant is legally aided. In the normal course of events, I should be asking for my costs.

THE DEPUTY JUDGE: Do you really want to press it on me?

MISS ASTANIOTIS: Not too strongly.

MR. BOWEN: I would have said that in the circumstances of the second part of your Lordship's judgment ----

THE DEPUTY JUDGE: I would not, in any event. You want a taxation.

MR. BOWEN: There is one minor point. Your Lordship indicated that on 1st February, when the applicant gave birth to her son, she became in priority need.

THE DEPUTY JUDGE: She was when she was pregnant. I will amend that when I come to revise my judgment. You are right. No doubt, when she made her application on 28th July she was probably in priority need.

MR. BOWEN: She was.

THE DEPUTY JUDGE: Just. I will amend my judgment accordingly.

MR. BOWEN: I do ask for legal aid taxation of the applicant's costs.

THE DEPUTY JUDGE: Indeed.

MR. BOWEN: I would ask for leave to appeal at this stage.

THE DEPUTY JUDGE: You will have to persuade me. What point that I have decided gives you an arguable case in front of the Court of Appeal?

MR. BOWEN: I would hesitate to say in relation to the Wednesbury point, although I do.

THE DEPUTY JUDGE: You would not persuade me on that one.

MR. BOWEN: In terms of the reasons, having found that there is an unsatisfactory lack of reasons, the issue as to what then happens in terms of relief or referral back to the authority is undecided by the High Court.

THE DEPUTY JUDGE: It has been decided now.

MR. BOWEN: In the context of observations made in other cases slightly different results have emerged. In those circumstances, it is arguable. Secondly, in the light of the jurisprudence around the issue of reasons and whether they stand outwith or within the section ---

THE DEPUTY JUDGE: Without giving you any encouragement that you have the slightest hope of upsetting this on appeal, you may have leave.

MR. BOWEN: I am obliged.