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Don’t look down: The decision in El-Dinnaoui v Westminster City Council

The duty that local authorities have to accommodate homeless applicants in priority need is well established. But that duty, in section 193 of the Housing Act 1996, ceases to apply if a homeless applicant refuses to accept accommodation which is suitable for them.

The Court of Appeal has recently given judgment in a case which will make it harder for local authorities to conclude that accommodation was suitable in circumstances where the applicant says it is not.

The background

Mrs El-Dinnaoui has an unfortunate fear of heights.  It is all the more unfortunate because in early 2002 her local authority, Westminster City Council, decided to accommodate her and her family on the ninth floor of a tower block. Shortly after the move, Mrs El-Dinnaoui began to suffer from migraines and from depression which she blamed, in part, on living so high up.

When Mrs El-Dinnaoui had her third child, the ninth floor flat became overcrowded. Happily the local authority found an alternative property for the family. Unhappily this time it was sixteen floors from the ground. When Mrs El-Dinnaoui went to view the new flat, her vertigo was so overpowering that she fainted and had to be rushed to hospital by ambulance.

The local authority, undeterred, stated that they considered the property suitable for the family despite two letters from Mrs El-Dinnaoui’s GP attesting to a lifelong fear of heights and a need for accommodation closer to the ground (although her GP confirmed that prior to her fainting at the sixteenth floor property, there was no record of her having reported a fear of heights.)

In February 2012 the local authority review officer concluded that Mrs El-Dinnaoui had not a phobia of heights, but rather a much milder general dislike of heights. They noted that she had managed to settle in the ninth floor property she had previously occupied and they concluded that in refusing the sixteenth floor property, she had therefore refused accommodation which was suitable and the authority’s section 193 duty had therefore ceased. In an audacious piece of interior design advice, the local authority suggested that Mrs El-Dinnaoui could always cover the windows with thick curtains so that her dislike of heights need not be troubled by the view of a sixteen storey drop to the ground.

First appeal

On appeal to the Central London County Court, His Honour Judge Bailey upheld the review officer’s decision, finding that no more extensive enquiries into the extent of Mrs El-Dinnaoui’s difficulty with heights were necessary, given that she had only ever complained to her doctor once about having a problem with heights.  His Honour Judge Bailey therefore accepted that the local authority review officer had been entitled to conclude, without making further enquiries, that Mrs El-Dinnaoui’sproblem was not a serious phobia, but rather a general dislike of heights.

Court of Appeal

In the Court of Appeal, two arguments were run for Mrs El-Dinnaoui:

  1. That the local authority should have made further enquiries as to whether Mrs El-Dinnaoui’s difficulty with heights made it impossible for her to live high up.
  2. That, given the correspondence from her GP attesting to a lifelong fear of heights, the local authority’s decision that a sixteenth floor property was suitable was irrational.

Sufficiency of enquiries

The Court of Appeal repeated the established principle that it is for the local authority to decide what enquiries are necessary and that that decision is only subject to challenge if the applicant suggests further enquiries that are needed and the local authority’s refusal to make those enquiries is one which no reasonable authority could have made (Cramp v Hastings BC [2005] HLR 48).

In Mrs El-Dinnaoui’s case, neither she nor her advisers had ever asked for further enquiries to be made of her doctors regarding her fear of heights.  In those circumstances, the Court of Appeal held that the authority had made sufficient enquiries.

Irrational decision

The more troubling part of the judgment for local authorities concerns whether the authority’s decision was rational.The Court of Appeal concluded that the authority’s decision that a sixteenth floor property was suitable was perverse.

The Court first accepted the established position that the courts must take a “benevolent approach” when considering whether a local authority’s review decision was rational and must not take an approach which is overly “nit-picking” (Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7).

However the Court noted that when considering Mrs El-Dinnaoui’s case, the local authority had been faced with medical evidence in the form of letters from her GP confirming a lifelong fear of heights requiring her to live closer to the ground.  Crucially the Court emphasised that this medical evidence was entirely uncontradicted: the local authority had no other medical evidence to suggest that Mrs El-Dinnaoui had anything other than a fully developed phobia.

The local authority had reached its conclusion that Mrs El-Dinnaoui merely had a general dislike of heights without any medical evidence to support that view.  The review officer’s decision to that effect appears to have been reached purely on the basis that Mrs El-Dinnaoui had managed to live in a ninth floor property.  However the Court of Appeal pointed out the difficulties with this conclusion: in the ninth floor property, the windowsills had been positioned very high up, meaning that much of the view from the windows was obscured.  In any event, far from Mrs El-Dinnaoui having settled well into the property, the medical evidence was clear that she had begun to suffer from migraines and depression within months of moving into that property.

The Court of Appeal emphasised that if the local authority doubted the conclusion of Mrs El-Dinnaoui’s GP that a high-up property was unsuitable, then it was incumbent on the local authority review officer to arrange for a further medical opinion.

Impact of the decision

The decision places a greater burden on local authorities. Some GPs may readily give written evidence in support of a homelessness application. Where they do, which suggests that a property is unsuitable for a medical reason, it will be difficult for the local authority in light of the El-Dinnaoui decision to reach a conclusion which is at odds with that medical evidence unless it has first gone to the trouble and expense of obtaining its own evidence to the contrary. The time and money which obtaining medical assessments and reports will involve will not be welcomed by local authorities already hard pressed after repeated budget cuts in recent years.

For advisers of homeless applicants, the judgment sends two important messages. Firstly, it shows just how crucial (and potentially decisive) medical evidence will be for homeless applicants disputing the suitability of a property.  Secondly, it shows that if a homeless applicant considers that a local authority has made insufficient enquiries before reaching its decision, the onus will be on the homeless applicant or their advisers to point this out to the authority and make clear what specific further enquiries should be made.

Finally, for those who enjoy a bit of natural light, it will come as a relief to know that the Court of Appeal was less than enthusiastic about Westminster City Council’s suggestion that Mrs El-Dinnaoui deal with her problem by living behind closed curtains to block out the view.  Giving the judgment of the Court, Sir Alan Ward asked simply: “Is it practical to live behind drawn curtains?” In light of the decision in El-Dinnaoui v Westminster City Council, homeless applicants will not need to.

For more information, please refer to the decision in El-Dinnaoui v Westminster City Council.