High Court quashes decision that homeless application was not fresh application

Mr Justice Eyre considered whether Somerset Council had applied the correct legal approach when it refused to accept that the claimant’s correspondence and supporting medical material constituted a new application for assistance.

He concluded: “Dr Downing's report amounted to fresh evidence by an avowed expert in support of the contention that the Claimant suffered from electrohypersensitivity and that this affected her in ways which made her vulnerable (or at least in ways which were potentially relevant to vulnerability). Dr Downing may be mistaken but it was not open to the Defendant to disregard the report and it clearly was significant new evidence. […] The Defendant's approach was flawed and was wrong in law.”

In November 2023, the claimant applied to the council for assistance pursuant to section 183 of the Housing Act 1996.

In her application, which was supplemented by material supplied on 29 November 2023, she contended that she was homeless and that she had a priority need for accommodation within the meaning of section 189 of the Act.

The claimant said her priority need came from the fact that she suffers from electrohypersensitivity and is vulnerable as a consequence.

In April 2024, the council informed the claimant that it had determined that her correspondence did not amount to a homeless application and that no further action was being taken in respect of it.

The council’s decision was made by reference to the decision which its predecessor as local housing authority, Somerset West and Taunton Council, had taken in October 2022 and upheld on a review in January 2023.

In that decision, the council had determined that the claimant was homeless and eligible for assistance but that she was not in priority need.

The judge noted: “The Defendant said that the material provided by the Claimant in November 2023 did not constitute an application because it did not advance any new facts which were not known about at the time of the previous application and/or that any new facts were trivial.”

The claimant applied for a judicial review of the council’s decision.

Outlining the correct approach to be taken to determining whether there is a new application, Mr Justice Eyre said: “Where an application is made under section 183, the local housing authority has a duty to make inquiries under section 184 (provided it has reason to believe that the applicant is homeless or threatened with homelessness); the applicant has a right to a review of any decision made on his or her application; and there is a right of appeal to the county court against decisions made on such a review.

“The courts have provided guidance on the circumstances in which it is open to a local housing authority to conclude that a purported application does not amount to an application for the purposes of section 183. If the circumstances are such that a purported application is not to be treated as an application the obligation to make inquiries does not arise; there is no right of review; and the applicant has no right of appeal to the county court.”

The judge outlined relevant caselaw concerning homelessness applications, including Rikha Begum, Minott, Ibrahim, and Ivory, emphasising the two-stage approach identified by Lewison LJ: first, whether there is an application at all, and second, if so, whether it is well-founded following inquiries under section 184.

It was noted that the circumstances in which a local housing authority is entitled to reject a purported new application without undertaking section 184 inquiries are “very limited”.

Mr Justice Eyre went on to examine the council’s decision and the documents leading to it – including a report from Dr Serra, a Consultant in Clinical Neurophysiology at King's College Hospital, and the report from Dr Downing.

Dr Serra’s report stated the following:

“On this occasion I managed to record from several C-nociceptors again. Some of the C-nociceptors were engaged in ongoing spontaneous activity. These two spontaneous units were Type 1B mechano-insensitive C-nociceptors.

“We performed the recording with intermittent switching on and off the mobile phone near her foot but this time on a blind manner. This time however, there were no changes in the baseline conduction velocity. This time, also, an infrared thermometer pointing exactly to the skin of the receptive field did not detect any change in surface temperature except on the occasion in which the patient had visual access.

Therefore, I detected again signs of spontaneous activity in C nociceptors, which reaffirm the initial suspicion that her neuropathic pain symptoms are compatible with an underlying small fibre neuropathy."

Dr Downing’s report meanwhile stated:

“[The claimant] gives what I would describe as a classical history of the development of firstly food intolerances, then multiple chemical sensitivities (MCS), then electro-hypersensitivity (EHS). There have been clear triggering events at each stage of this process, much as described in the latter document. This pattern has given rise to the acronym TILT for the way that people typically develop MCS - Toxin-Induced Loss Of Tolerance. In her case a similar event appears to have triggered the EHS as well.

“She also "passes" several cross-checks that we use to confirm diagnoses. More importantly, the neurophysiological investigations in 2018 by Dr Jordi Serra at Kings College Hospital clearly showed that she exhibits an alteration in neuronal function on exposure to radio-frequency radiation (RFR).

“I have also seen the conclusions of two tribunals, in 2018 and 2020, which both ruled that she does have electro hypersensitivity.

“[…] In my medical opinion [the Claimant’s] acknowledged medical condition will have two major consequences - the avoidance of which is the principal reason that she is currently living in tents and other temporary low emf accommodations. Both of these consequences are clearly triggered by radio-frequency radiation (RFR) exposure.”

The council’s decision that the claimant's correspondence did not amount to a homeless application was set out in a letter in April 2024.

The letter began by saying that no application had been accepted because the council was "satisfied that there are no new relevant facts that were not known about at the time we dealt with your previous application or that any new facts presented are trivial".

The reasons for the decision were set out in the following terms:

“1. You have provided us with the report of Jordi Serra dated 10 May 2018. This does not provide evidence of a diagnosis of EHD. In fact, it undermines it. The report says that they tried to elicit a electro-sensitive response and did not get one, unless you could see that there was a mobile phone close to you. If you could not see the phone, there was no reaction. This suggests that you are not sensitive to the emanations from a mobile phone. The report's conclusion is 'Her neuropathic pain symptoms are compatible with an underlying small fibre neuropathy' not electro-hypersensitivity. This therefore indicates that you had neuropathic pain in 2018, but that is not a new fact.

“2. Dr Downing's 'impact statement' does not give a diagnosis. All Dr Downing does is suggest the possible consequences of EHD in general, not specific to you. He does not give any independent evidence from having examined you, or confirm any evidence. As we already know about the EHD, the report does not provide any new facts.

“I am therefore satisfied that your fresh application does not reveal new facts since the date of the original decision. There are no new facts that indicate an intensification of your homelessness since the original decision, or any relevant change of circumstance, or a change to your assessed medical health needs that are different facts to those which were known about at the time of your previous application.

“As a result the Council is not under any duty to accept your new application for housing assistance."

Analysing the case, Mr Justice Eyre said: “The failings in the Defendant's approach to the reports of Dr Downing and of Dr Serra were significant. The Defendant misread Dr Downing's report and engaged in an analysis of it and, still more, of Dr Serra's report which would have been appropriate at the second stage and when considering whether the Claimant was vulnerable but which was not appropriate at the first stage when the issue was solely whether the purported application was a fresh application.

“The misinterpretation of Dr Downing's report was particularly telling. Not only did it go beyond any rational difference of interpretation but it had a real impact on the approach taken by the Defendant.”

The judge continued: “Dr Downing's report amounted to fresh evidence by an avowed expert in support of the contention that the Claimant suffered from electrohypersensitivity and that this affected her in ways which made her vulnerable (or at least in ways which were potentially relevant to vulnerability). Dr Downing may be mistaken but it was not open to the Defendant to disregard the report and it clearly was significant new evidence.

“[…] The Defendant's letter said that Dr Serra's report undermined rather than supported the contention that the Claimant suffered from electrohypersensitivity. It explained why it regarded Dr Serra's report as having that effect. There is force in the Defendant's interpretation of that report. It is, however, of note that Dr Downing refers to it as supporting the Claimant's contentions. The question of which is the correct interpretation it is a question which is apt for consideration in the course of the second stage when the application is being investigated. The position at the initial stage was that it was to be seen as an independent report recording the findings of a medical expert in circumstances where a different expert said that those findings supported the Claimant's case.”

The judge therefore concluded that not only did the council misinterpret Dr Downing's report but it also “engaged in an analysis of the merits of the matters being put forward and did so in a way appropriate for the second stage but which was impermissible at the threshold stage of considering whether a fresh application was being made”.

As a consequence, the council’s approach was “flawed” and “wrong in law”.

Concluding the judgment, Mr Justice Eyre said: “Although [the council] purported to consider whether new facts were being advanced, the Defendant was not in reality doing so. Instead, its approach was based on a mischaracterization of the earlier decision which was combined with a misinterpretation of the further material and an impermissible investigation into the weight of that material.

“Subject to the Defendant's invocation of section 31(2A) of the Senior Courts Act 1981 the decision of 12th April 2024 falls to be quashed.”

In respect of section 31(2A) Mr Justice Eyre said: “There is no scope for real dispute as to what Dr Downing was saying (whether his conclusions were correct may well be a very different matter). In light of that it is hard to see how the report could not be seen as being 'significant fresh evidence in support of a previously made factual assertion'. It certainly is not highly likely that it would have been characterized as not being significant fresh evidence even if the earlier decision and the report had been properly interpreted and the correct approach applied.”

Lottie Winson