Velma Lyrae, R (on the application of) v Somerset Council

Mr Justice Eyre: Introduction.

1. On 6 th November 2023 the Claimant applied to the Defendant as local housing authority for assistance pursuant to section 183 of the Housing Act 1996 (“ the Act ”). In her application, which was supplemented by material supplied on 29 th November 2023, the Claimant contended that she was homeless and that she had a priority need for accommodation within the meaning of section 189 of the Act .

2. The Claimant says that her priority need flows from the fact that she suffers from electrohypersensitivity and is vulnerable as a consequence.

3. On 12 th April 2024 the Defendant 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 Defendant’s decision was made by reference to the decision which its predecessor as local housing authority, the Somerset West and Taunton Council, had taken on 14 th October 2022 and upheld on a review on 6 th 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 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.

4. The Claimant applies for judicial review of the Defendant’s decision on one ground pursuant to permission I gave in July 2025, namely that the Defendant’s approach was wrong in law by reason of having applied the wrong test. The Claimant contends that although the Defendant’s decision made reference to the correct test it did not in fact apply that test. She says that when regard is had to the earlier application and to the material she provided in November 2023 it can be seen that the Defendant’s decision did not amount to the application of that test. The Defendant says that on a proper reading of those documents its approach was unimpeachable in law.

5. It follows that the central issue is whether the approach taken by the Defendant was in fact correct in law when seen in the light of the sundry documents. Was it open to the Defendant, applying the correct test, to conclude that the further material was not to be treated as an application under the Act ? The Statutory Framework.

6. Part VII of the Act deals with applications for assistance in cases of homelessness.

7. Pursuant to section 183 a person who is homeless or threatened with homelessness may apply to a local housing authority for accommodation or for assistance with finding accommodation.

8. Section 184 provides that where a local housing authority has reason to believe that a person is homeless or threatened with homelessness then the authority is to make such inquiries as are necessary to satisfy itself whether the person is eligible for assistance and if so the nature of the duty owed to that person.

9. By section 189(1) (c) those who have priority need include “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason”. The effect of the decision of the Supreme Court in Hotak v Southwark LBC [2015] UKSC 30 ; [2016] AC 811 is that vulnerability must be assessed comparatively and by reference to the context of being homeless. A person is vulnerable for the purposes of the Act if the relevant condition or reason means that he or she will be significantly more vulnerable if homeless than a person without that condition or to whom the reason does not apply.

10. By section 193 where a local housing authority is satisfied that a homeless person with priority need has not become homeless intentionally then the authority has a duty to secure that accommodation is available for that person.

11. Section 202 of the Act gives an applicant the right to request a review of the decision of a local housing authority either as to that person’s eligibility for assistance or as to the duty owed to that person.

12. Section 203 makes provision for the procedure which is to apply on such a review and section 204 provides a right of appeal to the county court on a point of law if the applicant is dissatisfied with the decision made on the review. The Approach to be taken to determining whether there is a New Application.

13. It follows that 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.

14. In R (Ivory) v Welwyn Hatfield BC [2025] EWCA Civ 21 , at [68], Males LJ identified the competing considerations. The court has to be mindful of “the mischief that hard pressed housing authorities should not have to deal with repeated applications which contain nothing new”. The need to avoid that mischief has to be balanced against the requirement to meet “the needs of vulnerable applicants who may not have got it right first time, but [who] do in fact have potentially valid grounds for seeking housing assistance which ought at least to be considered”.

15. In London Borough of Tower Hamlets v Rikha Begum [2005] EWCA Civ 340 , [2005] 1 WLR 2103 the Court of Appeal addressed the effect of the proper interpretation of the decision of the House of Lords in R v London Borough of Harrow ex p Fahia [1998] UKHL 24 ; [1998] 1 WLR 1396 .

16. At [49] and [50] Neuberger LJ, with whom Keene LJ agreed, explained that once there was “a genuine and effective application” and provided that the local housing authority was satisfied that the applicant was or may be homeless or threatened with homelessness section 183 of the Act was engaged and the subsequent provisions became effective. There was no scope, Neuberger LJ explained, “to imply a further requirement … such as establishing a material change of circumstances since the refusal of an offer of accommodation pursuant to an earlier application before the clear words of sections 183 and 194 can take effect”.

17. At [59] – [61] Neuberger LJ set out guidance to the approach to be adopted by local housing authorities when faced with further purported applications for assistance from those in respect of whom decisions had already been made. His lordship emphasized that the guidance was necessarily “of a general nature” and that “each application must be dealt with on its own particular merits”. He then said: “59. First, it seems to me that it is for an applicant to identify, in the subsequent application, the facts which are said to render that application different from the earlier application. If the authority are to assess the question of whether the circumstances of the two applications are ‘exactly the same’ by reference to the facts revealed by the document by which the subsequent one is made, then that, I think, must be the logical, indeed the inevitable, consequence. Accordingly, if no new facts are revealed in that document (or any document accompanying it or referred to in it), the authority may, indeed, at least normally, should, reject it as incompetent.

60. Secondly, if the subsequent application document purports to reveal new facts, which are, to the authority's knowledge, and without further investigation, not new, fanciful, or trivial, then the same conclusion applies. The facts may not be new because they were known to, and taken into account by, the authority when it offered the applicant accommodation to satisfy the earlier application. It is not appropriate to expand upon what may constitute or are fanciful or trivial alleged new facts, because that must inevitably turn on the particular circumstances of the particular case.

61. Thirdly, I turn to a case where the subsequent application document appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant's purposes on investigation. In such a case, I consider that the authority must treat the subsequent application as a valid application, because that is what it is, in light of the reasoning of the House of Lords in Fahia. In particular, I do not consider that, in such a case, the authority would be entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid, even where there may be reason to suspect the accuracy of the allegations. Such an investigation would, in my view, fall foul of the manifest disapproval in Fahia of non-statutory inquiries. Even if an investigation to decide whether the application is valid is expected to be comparatively short and simple, it seems to me that it would transgress that disapproval, as well as running into the other difficulties I have referred to, based on the wording and structure of Part VII of the 1996 Act .”

18. In R (Bukartyk) v Welwyn Hatfield BC [2019] EWHC 3480 (Admin) Sam Grodzinski QC sitting as a deputy High Court Judge explained, at [46], that the effect of the Rikha Begum approach was that there were to be two separate stages. At the first stage the local housing authority was to assess whether the facts advanced in the further purported application were new and not trivial. The assessment of whether the facts advanced established that the applicant was vulnerable was a separate matter. That formed the second stage of the process and was to be addressed in the context of inquiries made pursuant to section 184 “and not at the prior stage of deciding whether there is an effective application in the first place”.

19. The Court of Appeal returned to this question in Minott v Cambridge City Council [2022] EWCA Civ 159 ; [2022] PTSR 786 . Macur LJ summarized the effect of the Rikha Begum guidance thus at [25]: “Where the fresh application appears to reveal new facts, which are, in light of the information then available to the authority, neither trivial or fanciful, although they may turn out to be inaccurate or insufficient for the applicant's purposes on investigation, the LHA must treat the subsequent application as a valid application. The LHA are not entitled to investigate the accuracy of the alleged new facts before deciding whether to treat the application as valid: see para. 61.”

20. At [75] Lewison LJ explained how Neuberger LJ’s reference to facts which were “fanciful” or “trivial” was to be interpreted saying: “It is important to read these words in context. What the authority is doing is looking at the facts alleged by the subsequent application. It is only in that context that it is possible to make sense of the word ‘fanciful’. If, for example, Mr Minott had alleged that his home in Cambridge had been destroyed by a meteorite, a local authority would be entitled to regard that as a fanciful allegation. Whether a fact is or is not trivial is perhaps open to debate; but a fact cannot be regarded as trivial merely because it could not affect the outcome of the second application. To read Neuberger LJ’s observation in that sense would be inconsistent with Fahia and also inconsistent with the earlier reasoning in his judgment.”

21. Then, at [76], Lewison LJ identified the two separate stages in the process thus: “What, however, is clear to my mind is that when the housing authority receives what purports to be a subsequent application, their inquiry falls into two quite separate stages: i) Stage 1: is it an application at all? The answer will only be no if it is based on precisely the same facts as an earlier application (disregarding fanciful allegations and trivial facts); ii) Stage 2: if it is an application, is it well-founded? That will require the housing authority to carry out the inquiries required by section 184. If an application passes stage 1, there is no available short cut.”

22. At [27] Macur LJ explained that a decision as to whether or not a subsequent purported application was a fresh application could only be challenged by way of judicial review and on public law grounds. Thus, the decision can only be overturned on the basis of an error of law or of irrationality (see per Amanda Yip QC, as she then was, in R (Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin) , [2016] HLR 35 at [32] and Soole J in R (Ibrahim) v Westminster City Council [2021] EWHC 2616 (Admin) , [2022] HLR 13 at [66]). However, it is necessary to have regard to the narrowness of the issue which the local housing authority is to address and to the very limited scope for legitimate differences of interpretation. As Underhill LJ explained in Minott at [101], “typically the issue [of whether a purported application is a fresh application] will be one to which only one answer is possible.” Similarly, in Ibrahim at [96] Soole J agreed with the submission of counsel that although the question was one of rationality “the less evaluative the decision, the easier to satisfy the test [of irrationality]”. The local housing authority’s decision as to whether a purported application is a fresh application will normally be made on the basis of a written application which falls to be considered against earlier written documents and an earlier decision. It will be rare that there will be scope for there to be different but equally rational answers to the question of whether there is a fresh application.

23. In Ibrahim at [98] Soole J rejected a submission that “a new application is dependent on the occurrence of a new fact or circumstance or event which postdates the original decision” saying: “In my judgment the reasoning of the House of Lords in Fahia provides no basis for that contention, nor did the Court of Appeal in Begum so find. I do not accept that the effect of Fahia was simply to remove the word 'material' from the previously understood test of 'change of material circumstances'; that the ratio of Begum i s confined to [46]; or that its use of the phrase 'compare the circumstances' has that effect. Whilst no doubt it will typically be the case that the new fact or circumstance postdates the original decision, I can see neither authority or reason to exclude a relevant new fact or circumstance which does not postdate the original decision; ... On a proper reading of Fahia and Begum , there simply has to be a comparison between the facts and circumstances known to the authority at the date of the original decision and those identified in the purported new application.”

24. At [99] Soole J added: "I do not accept that this construction is undermined by the proper concern that the local housing authority must be protected against applicants who seek to secure permanent temporary accommodation by a continuing cycle of repetitious applications supported by additional pieces of evidence. In such cases, the authority would be entitled to reject such applications as abusive.”

25. The approach to be taken was addressed again by the Court of Appeal in Ivory . Before me Miss Rowlands submitted that the starting point remained the approach articulated in Rhika Begum which she described as being the locus classicu s. Miss Rowlands appeared to be submitting that the lawfulness of the Defendant’s decision was to be judged solely by reference to the test set out in Rhika Begum . To the extent that this was the Defendant’s position I do not accept it. The decision in Rhika Begum was indeed the starting point of the relevant line of authority but the applicable test is now that which was set out in Ivory following the court’s consideration in that case of Rikha Begum together with the subsequent first instance and appellate decisions. It is by reference to the law as set out in Ivory that the lawfulness of the Defendant’s decision is to be determined.

26. Although the members of the court in Ivory were agreed that the defendant’s rejection of the application was to be quashed, they differed in their articulation of the approach to be taken by a local housing authority when considering a purported fresh application.

27. At [43] Newey LJ summarized the approach thus: “i) The primary concern is with facts rather than evidence; ii) The facts now alleged fall to be compared with the facts as they were found to be on the earlier application; iii) Allegations and facts which are trivial or fanciful can, however, be disregarded; iv) Where the later application simply repeats an earlier, rejected allegation of fact and is not supported by any new evidence of any significance at all, the fact alleged will be a ‘new fact’ but the local housing authority will be entitled to dismiss the allegation as fanciful. To that extent, the question whether there is fresh evidence (and, if so, of what it consists) may be relevant.”

28. At [44] – [48] Newey LJ referred to a number of points which arose from the earlier authorities. The following are of note for current purposes.

29. At [44] his lordship highlighted that in Minott at [75] Lewison LJ had explained that the local housing authority was to consider the facts “alleged” in the purported new application and Newey LJ then noted that: “... the trivial and fanciful apart, the authority has to work from what is asserted without determining whether a claim is well-founded.”

30. At [45] Newey LJ explained the basis for his conclusion that the comparison was between the facts now alleged and those previously found or accepted. Then, at [46], he set out his view that the previous authorities had focused on the significance of new facts rather than new evidence.

31. At [47] he said: “...it is plain from Rikha Begum and Minott that ‘fanciful’ and ‘trivial’ allegations can be disregarded.”

32. Then, at [48], his lordship added: “... it seems to me that a local housing authority will be entitled to reject an allegation which simply replicates one that was made and rejected before and for which no new evidence of any significance at all is now provided.”

33. At [49] Newey LJ emphasized that the scope for rejecting purported fresh applications is very limited saying: “Even so, the circumstances in which a local housing authority is entitled to reject a purported new application without undertaking the inquiries for which section 184 of the 1996 Act provides must be very limited. That, however, is not surprising. Sections 183 and 184 of the 1996 Act do not expressly circumscribe the obligation. Moreover, Lewison LJ commented in Minott , at paragraph 89, that the trend in the case law ‘tends to confirm Lord Browne-Wilkinson’s prediction in Fahia that cases in which a housing authority would be entitled to refuse to entertain a subsequent application would be confined to ‘very special cases’’.”

34. At [64] Males LJ summarized the point on which he differed from Newey LJ’s articulation of the applicable approach thus: "The point on which I would take a different approach concerns the nature of the comparison to be carried out in order to decide whether a new application must be accepted. Lord Justice Newey says that the relevant comparison is between the facts now alleged and the facts as they were found to be on the earlier application (see [43(ii)] above). In my view the relevant comparison is between the new application and the earlier application. If the two applications are the same, the later application need not be accepted.”

35. Males LJ then said, at [68] and [69]: “(68) This suggests to me that the real comparison is not between the facts now alleged and the facts previously found, with a gloss that in some circumstances a later application may be rejected as fanciful. Rather, it is a more straightforward comparison between the earlier application and the later application. If (as in this case) the later application is founded on the same allegation as the earlier application, but does provide significant new evidence, I see no reason why it should not be regarded as a new application which the council is required to consider. This approach deals with the mischief that hard pressed housing authorities should not have to deal with repeated applications which contain nothing new, while meeting the needs of vulnerable applicants who may not have got it right first time, but do in fact have potentially valid grounds for seeking housing assistance which ought at least to be considered. (69) Moreover, if (as I understand Lord Justice Newey to accept) significant new evidence may mean that a new application is not identical to an earlier application, I see no reason to draw a bright line distinction between new evidence which asserts additional facts and new evidence which says nothing new but is significant in other ways, for example because of its intrinsic reliability (e.g. contemporary documents) or its source (e.g. an independent expert).”

36. The effect of Rikha Begum was summarized thus, at [81] and [82]: “(81) Overall, there is nothing in Rikha Begum to suggest that the relevant comparison is anything other than a comparison of the two applications, while treating the earlier application as not limited to what was said in the initial application but including all matters on which the applicant relied and which the local authority took into account by the time that application came to be determined. (82) Further, it is the substance of the two applications which has to be compared. The addition of new facts which are merely fanciful or trivial will not mean that a later application is different from an earlier application. I note that this appears to be the origin of the concept of fanciful or trivial facts in this context. What Lord Justice Neuberger was saying was that fanciful or trivial facts or allegations can be left out of account, not that an identical later application can be ignored because it is fanciful, which is a slightly different point.”

37. Males LJ set out the effect of his analysis at [106] in these terms: “I would therefore summarise the position as follows: (1) The relevant comparison is between the earlier and the later application. For this purpose the earlier application consists not merely of the initial application, but all matters relied on by the applicant up to the time when the application is finally disposed of. (2) The later application may only be rejected on the basis that it does not count as an application at all if it is identical to the earlier application or if any new matters are trivial or fanciful. (3) For this purpose there is no hard and fast line between new facts and new evidence. An application which repeats an earlier, rejected allegation but which is supported by significant new evidence may not be refused. (4) A local authority will not be permitted to refuse an application on the basis that significant new evidence of a fact which it had previously denied says nothing new. That would be an obvious injustice.”

38. At [110] Phillips LJ explained that he agreed with Males LJ that “the facts of the further application should be compared with the facts alleged in the previous application as at the date it was determined”. Then, at [111], he said: “I would add that, despite the difference in the routes they take, Newey LJ and Males LJ appear to arrive at the same destination. Put simply, they both recognise that a further application must be accepted if either (i) it is based on a factual assertion which has not previously been made and which is not trivial or fanciful; or (ii) it adduces significant fresh evidence in support of a previously made factual assertion, whether or not rejected. That appears to be an appropriately straightforward test for a housing authority to apply.”

39. The distinction in the approaches was as to whether the contrast was between the facts asserted in the purported fresh application and either (a) those found or accepted by the local housing authority previously or (b) the facts alleged in the previous application. The majority explained that the latter is the correct comparison albeit noting that the facts previously alleged are to include all matters which had been put forward before the local housing authority’s final determination of the previous application.

40. The members of the court were agreed that there will be a new application where there is significant new evidence of a fact which was previously asserted by the applicant but rejected by the local housing authority. It is also clear that all were agreed that rejection of a purported new application on the basis that it is repetitive of a previous application is to be an exceptional course.

41. The requirement that the new evidence be “significant” is a low hurdle. The local housing authority is applying a threshold test in respect of which inquiries are not appropriate as I will explain below. Moreover, the distinction is between new evidence which is “significant” and that which advances points which are either “fanciful” or “trivial”. Miss Rowlands submitted that new evidence was only significant if it was both evidence of substance and evidence which advanced matters relevant to the applicant’s vulnerability when homeless. I do not accept that gloss on the requirement of significance. Thus, in Minott at [75] Lewison LJ explained that the fact that an asserted fact “could not affect the outcome of the second application” does not mean that the fact is to be seen as trivial for these purposes. Similarly, in Rikha Begum at [61] Neuberger LJ noted that asserted facts which “may turn out to be inaccurate or insufficient for the applicant’s purpose on investigation” are not, solely for that reason, fanciful or trivial. In Ivory at [107] Males LJ said that it was unnecessary in that case to decide where the dividing line lay between “evidence which is significant and that which is merely trivial or fanciful” but it is relevant to note his explanation, at [106(4)], that evidence is not to be discounted simply because the local housing authority believes it “says nothing new”. The only support for the gloss advanced by Miss Rowlands comes from the closing words of [43(iv)] of Newey LJ’s judgment in Ivory which I have quoted above. However, those words have to be seen in the context of Newey LJ’s judgment as a whole. Earlier in the same paragraph Newey LJ had referred to “new evidence of any significance at all” and the final sentence of [44] is of note with Newey LJ’s explanation there that “the trivial and the fanciful apart, the authority has to work from what is asserted without determining whether a claim is well-founded”. It is moreover to be remembered that the requirement of significance is being brought into play at a threshold stage in circumstances where the local housing authority is not to undertake investigations. The contrast is between evidence which is significant and that which is fanciful or trivial and the requirement of significance is to be seen in the light of that contrast. Provided new evidence is neither fanciful nor trivial it is not to be disregarded as being insignificant.

42. Miss Rowlands also submitted that there was a restriction where a purported application was based on new evidence in support of previously asserted facts. She said that such an application would only be a fresh application if, and there could only be regard to that evidence if, the evidence had not been available to the applicant at the time of the previous application. Miss Rowlands made reference to the test derived from Ladd v Marshall [1954] 1 WLR 1489 governing the admission of fresh evidence on appeal. It became apparent, however, that she was not contending that all the elements of that test had to be satisfied. Instead, her submission was that material could not be new evidence if it had been in the possession of the applicant at the time of the previous application but had not been relied on in support of that application. In the context of this case Miss Rowlands said that this meant that the only potentially new evidence was the report of Dr Downing. She submitted that the report of Dr Serra was not capable of being new evidence because it had been in the Claimant’s possession at the time of the application addressed in the October 2022 decision and the January 2023 review but had not been provided to the Defendant.

43. In support of that argument Miss Rowlands contended that the requirement that the evidence had not been in the applicant's possession at the time the earlier application was considered flowed from the references in Rikha Begum to “new facts” and in Ivory to “new evidence”. She submitted that evidence could not be new if the applicant had been possession of it at the time of the earlier application. In addition, Miss Rowlands contended that there was no authority in which such material had been accepted as being new evidence. She did not, however, contend that there was any case in which the issue had been expressly addressed nor point to any authority expressly enunciating the proposition which she was advancing.

44. I reject that argument. There are a number of considerations which demonstrate that it is misconceived.

45. First, the question being considered when the court is determining a challenge to a local housing authority’s rejection of a purported application is the propriety of the authority’s actions. The authorities are concerned with the approach which a local housing authority should take to a purported application and to considering whether the section 184 obligation to engage in inquiries is triggered. The references to “new” facts and to “new” evidence are to be seen in that context. It follows that matters are being assessed from the viewpoint of the local housing authority. Evidence is “new” if it is new to the local housing authority.

46. Not only does that conclusion follow from the context but it is the most natural reading of the references to “new facts” or “new evidence” in Rikha Begum ; Minott ; and Ivory.

47. The court in Ivory was concerned to identify “an appropriately straightforward test” (per Phillips LJ at [111]) to be applied by a local housing authority at the initial stage. The question of whether a purported application is a new application is a threshold question to be determined before the local housing authority engages in inquiries. In Rikha Begum Neuberger LJ made it clear (see at [61]) that an investigation at the preliminary stage was impermissible even if it would be “comparatively short and simple”. The approach for which Miss Rowlands was contending would, however, require such an investigation. Whether a fact or evidence is new to the local housing authority is a matter which will be within the knowledge of that authority and which can be determined without an investigation. That is not so in respect of the question of whether material was in the possession of an applicant at the time of an earlier application. In order to determine that it would be necessary for the local housing authority to undertake some form of investigation or analysis. Even more so would this be the case if the test were seen as being whether it was material which the applicant could have obtained with reasonable diligence. That would be wholly inconsistent with the nature of the threshold exercise and with the prohibition on investigation at the first stage of the two-stage process.

48. Next, it is clear from Ivory that material can amount to new evidence if it is evidence which had not previously been considered by the local housing authority but which supported the applicant’s case as to the existence of a fact where the local housing authority had previously rejected the applicant’s case in relation to that alleged fact. There is no indication in Ivory that a distinction is to be drawn between those elements of such material which were in the applicant’s possession previously and those which were not. Moreover, such a distinction would run the risk of favouring those applicants who had failed to take steps to obtain relevant material unless it were to be supplemented by a Ladd v Marshall style requirement also excluding material which could have been obtained with reasonable diligence: an addition for which Miss Rowlands did not contend and which would complicate the initial threshold exercise still further.

49. It is necessary to take account of the context in which applications are made. In Ivory at [68] Males LJ drew attention to the importance of meeting the needs of vulnerable applicants who have potentially valid grounds which are worthy of consideration but “who may not have got it right first time”. A failure to put forward all the material which was available to support an application is a classic example of a person “failing to get it right first time”.

50. The position may well be wholly different if an applicant deliberately keeps material in reserve with a view to using it in support of a subsequent application if an initial application fails. There was no suggestion that the Claimant had acted in such a pre-planned and considered way here. Such a course on the part of an applicant may amount an abuse of the statutory regime. Where it is clear that this had happened and in an appropriate case it may well be open to a local housing authority to reject an application as abusive. As Soole J indicated in Ibrahim at [99] there will be circumstances in which a local housing authority will be entitled to reject an application as being abusive . In Ivory both Newey LJ, at [59], and Males LJ, at [108], accepted that there could be circumstances in which “improper conduct” (per Newey LJ) or abuse (per Males LJ) could justify such rejection. However, Males LJ explained that such circumstances “are likely to be very rare”. I n the context of applications by those who are ex hypothesi unintentionally homeless and who are potentially vulnerable a failure to put material before a local housing authority is more likely to be the result of ignorance or inadvertence than of deliberate planning and should not, without more, preclude consideration of a potentially meritorious application.

51. Against that background I turn to consider the approach which the Defendant took when dealing with the Claimant’s purported application. The Decision under Challenge and the History leading to it.

52. The Claimant’s file with the Defendant’s predecessor was opened on 2 nd August 2021. That date is referred to both in the predecessor council’s records and in the decision of 14 th October 2022 as being the date of the Claimant’s homelessness application. It is apparent that there was no written application of that date. Instead, it appears that the Claimant contacted the predecessor council orally. The file summarizes the Claimant’s description of the housing issue at that stage thus: “Triggers threatening homelessness, tenancy default Ongoing issues with the landlord dating back to last Summer, 2020. Until this time the landlord tenant relationship had been good as reported by both of them. Velma reports at the time that she had lost a close friend and was mourning her loss, quite down. She says at this time she found her landlords communications too frequent and intrusive, so she told them only to contact her by email or in writing. Both report since then that there has been a number of misunderstandings over works to the property, build er access and how the work will be carried out and using what materiel’s etc. Velma suffers from RSI- repetitive strain injury; Multiple chemical sensitivity, Electro Hypersensitivity. These conditions which place a heavy duty on the landlord to be mindful of when carrying out works, particularly given the state of current communications, not direct and in person that they have resulted in numerous misunderstandings/grievances between the LL and tenant. The works being ; new taps being fitted to kitchen sink and more recently the new windows being fitted to bathroom, landing bedroom.”

53. On 16 th May 2022 the Claimant wrote to the Defendant’s predecessor and others under the title “Electrohypersensitivity Disability – Safe Housing”. The purpose of the letter was to enlist support for a change in central government policy in respect of the provision made for those suffering from electrohypersensitivity. In the letter the Claimant said: “I have put together this letter as it is evident that we have reached a state of crisis and this is creating an untenable situation. I appreciate and know fully well how difficult it is to find tolerable housing for me as I have been in this position for 18 years, having had to flee London and move to a rural setting in the county of Somerset. To fill others in - I have lived here for 4 years but due to my Landlord wanting to sell it has placed me in an irresolvable position of not having anywhere suitable for my Electrohypersensitivity Disability (EHS) to move to. My EHS condition was recognised for Universal Credit and PIP as a bona fide physiological condition (I do not meet any mental health disability markers). I presented with historical evidence, years of support from GP in London, letter from my Neurologist stating the fact I am sensitive to radiation and objective medical tests showing and stating effects from a mobile phone to my peripheral nerves and another my circulation, both separate tests under the supervision of my Neurologist. My DWP recognition of EHS was administered at Taunton Court and has been in place for a number of years. SW&T Council followed this up with an O.T Report which was fully supportive of recognising my condition stating that I have ‘exceptional circumstances’. I recognise SW&T have acknowledged my medical/environmental disability but reporting back how difficult and virtually impossible it is to find accommodation to place me. The latest suggestion is that I move to Cumbria in Wales which does not guarantee safety and I cannot keep moving home, away from family and friends, without a support network and running like a fugitive away from the next installation of this technology which is dangerous to my health. Even if I moved to Wales there is no guarantee of safety. This suggestion to leave the country tells me that England cannot provide a tolerable home for me as an Electrohypersensitive person. It is clear that for me and on behalf of other people with this medical/environmental condition that a change in policy is urgently needed. The issue is with central government just as the travellers plight needed resolving at central government level.”

54. The reference there to tests undertaken by the Claimant’s neurologist was to the results set out by Dr Serra, to which I will refer below. It is not suggested that those results were provided to the Defendant’s predecessor at that stage.

55. On 1 st June 2022 the predecessor council wrote to the Claimant with a Personalised Housing Plan containing advice with a view to avoiding the Claimant becoming homeless. In essence, this proposed a reopening of communications between the Claimant and her landlord. The position did not resolve and the Claimant became homeless on 22 nd July 2022.

56. On 14 th October 2022 Somerset West and Taunton Council made its decision that although the Claimant was homeless she was not in priority need. The decision was explained in a letter of that date from Sarah Phillips, that council’s Housing Options Case Manager.

57. Miss Phillips referred to the test derived from Hotak and said: “Finally, I have considered the framework set by the courts to help me assess your case as I accept that anyone who is homeless or faces being homeless will inevitably suffer an element of harm or risk by undergoing that experience. To assess whether you suffer from any vulnerability that would fall under the definition set by Section 189 (1) (C) I have considered your cited health issues. These I have determined are: • Electro-hypersensitivity which you state results in a number of symptoms such as heart palpitations, pains in your legs and feet, tinnitus, temporary deafness, hot flushes, pain in organs • Fibromyalgia”

58. Miss Phillips then gave her reasons for the conclusion that the Claimant did not have a priority need. The following points are of note: i) Miss Phillips said that she had considered the decision by the Department of Work and Pensions to award the Claimant Universal Credit. However, because the Claimant had only provided one page of a tribunal decision it was “incredibly difficult” to assess matters. Miss Phillips said that she had “on numerous occasions” requested other documents and the Claimant’s GP details so that she could “assess [the Claimant’s] cited conditions” but that this material had not been forthcoming. ii) Miss Phillips explained that provision of the Claimant’s GP details would have enabled the council to obtain confirmation of the medication which had been prescribed for the Claimant. iii) An occupational therapist report provided by the Claimant had been considered but having discussed the report with the occupational therapist Miss Philips stated that the therapist: “... confirmed that the report was written to reflect your stated needs and self-assessment of future housing; it was not an assessment of your needs based on her evaluation of you. Catherine O’Donnell confirm that the report was not a diagnosis confirmation or her professional opinion of your housing need and was client led rather than a professional assessment.” iv) Miss Phillips then listed a number of other sources of information to which the Claimant had referred noting that they were general accounts of matters related to electrohypersensitivity rather than a diagnosis of the Claimant. Miss Phillips then set out a quotation from the website of the World Health Organization relating to electrohypersensitivity and in particular matters which could be addressed by a doctor undertaking a medical evaluation of a person affected by the condition. She then said: “Unfortunately we have not been able to establish any of the above. You state you have been suffering from symptoms whilst in each of the temporary accommodation placements that have been provided under the s188 duty which was triggered to enable us to undertake an assessment of your needs and circumstances and to seek medical information. We also asked you to seek a medical assessment and evaluation and to provide us with any information relating to your cited condition and any other condition you told us about. Unfortunately you did not seek this helper any medical intervention despite our recommendations and requests for you to do so on numerous occasions. You have advised that you have been sleeping in a tent on occasions due to the health impacts associated with your accommodation and despite this, you have continued to refuse to seek any help or support from a medical practitioner and have relied totally on papers that have been written about the condition but not about your actual cited condition. I have made this decision based on being unable to reach a considered conclusion because of a lack of relevant information. Despite attempts to consider such information I have been hampered by your refusal to co-operate. When assessing your health and any vulnerabilities you may have, I am reliant on evidence sourced together with any other information that I have been able to glean. Having taken into account all of the above and based on the lack of medical information available, I do not believe that you would be at risk of harm in a way that is more significant than the average person becoming homeless. I do not directly find any evidence apart from self-reporting that indicates that you are unable to carry out daily living tasks to such a minimum standard that this is considered debilitating. You have had no difficulties in presenting the information and evidence requested by me and my colleagues, and there have been no additional complexities or safeguarding required throughout the application.”

59. Then, under a passage stating in bold that the decision was that the Claimant was not in priority need, Miss Phillips said: “In light of the above, I conclude that on balance of evidence that you are not currently experiencing significant detrimental symptoms or vulnerabilities affecting your daily life. I do not find that this composite assessment of evidence supports the notion that you are significantly more vulnerable as a result of your homelessness.”

60. I have quoted at length from that letter because there is an issue as to the basis on which the decision set out in it was made. Miss Rowlands submitted that the decision was made by reference to the symptoms which the Claimant had established with Miss Phillips concluding that they did not make the Claimant vulnerable. Miss Rowlands submitted that the assessment that the Claimant had not established that she was suffering from electrohypersensitivity was not central to the decision. There was some force in that analysis and some parts of the letter could be read in the way for which Miss Rowlands contended. However, I have concluded that when the letter is read as a whole and in context that is not the correct analysis. In particular, that reading does not take sufficient account of the approach which Miss Phillips took to the Claimant’s assertion that she was made vulnerable by reason of her electrohypersensitivity. Miss Phillips was not saying that the Claimant had not established that she suffered from electrohypersensitivity but that even if she had then the council did not accept that the symptoms flowing from that condition rendered the Claimant vulnerable. Instead, Miss Phillips concluded that the Claimant had not established that she was suffering from electrohypersensitivity and as a consequence took no account of the symptoms which the Claimant said flowed from that condition and which made her vulnerable. This interpretation of the letter follows when account is taken of the reference to electrohypersensitivity as the “cited condition” which was followed by the explanation of why Miss Phillips concluded that it was not established and by the explanation that Miss Phillips had disregarded the symptoms of which the only evidence was “self-reporting” by the Claimant – those being the symptoms which the Claimant attributed to electrohypersensitivity. It follows that the 14 th October 2022 decision was made on the footing that no account was being taken of the symptoms which the Claimant attributed to that condition.

61. On 3 rd November 2022 the Claimant exercised her section 202 right to call for a review of that decision. The Claimant set out her reasons for disagreeing with the decision at some length placing considerable emphasis on the tribunal decisions which had found her to be eligible for Universal Credit and a Personal Independence Payment. Under the heading “test for vulnerability” she said: “You have compared me to an ordinary person, robust and healthy and have not found me to be different than this description. I disagree with this decision to define me as such. I have Electrohypersensitivity which is a neurological and inflammatory disorder which results in a physiological and functional disability as well as extreme sensory overload. Exposure to radiofrequency signals causes me to experience acute neurological tinnitus, lose consciousness, have severe sharp pains in my head, severe sharp pains in my nerves and body, burning in the top of my spine and soles of feet. Exposure causes disregulation in my circulation - whereupon my blood pools in my feet. I get ectopic heartbeats and heart disregulation when exposed and I am not able to think straight, to calculate, to understand, (brain scramble) remember (brain-fog) rendering me unable to function and puts me at a substantial disadvantage to ‘ordinary’ people who are not Electrohypersensitive. I disagree that I would not suffer ‘harm or detriment which would make a noticeable difference to my ability to deal with the consequences of homelessness’. This is especially so with my loss of consciousness which last for approx. 2 hours each episode, usually at least twice a day when exposed to WIFI. This would make me vulnerable with risk of being attacked, mugged, raped or killed when unconscious if allowed to be homeless. Being Electrohypersensitive diminishes my ability to function on a physiological and physical basis as defined by the Tribunal assessing my daily living and working abilities relayed in my UC and PIP Awards. The Judge at the Tribunal for my PIP Award stated he would have given more points but for the fact that I avoid going out when I feel drowsy and likely to pass-out (when exposed from neighbours WIFI) and avoid WIFI outdoors/in public spaces to avoid passing out. However, if homeless I would not have a secure protected space to be in when I experience my loss of consciousness episodes.”

62. On 6 th January 2023 Alison Norton, Somerset West and Taunton Council’s Senior Case Manager, upheld the original decision. Miss Norton set out in some detail the difficulties which the council had in addressing the matter because of the lack of medical information which had been provided. In respect of electrohypersensitivity Miss Norton said that “despite your assertions that you suffer from this condition, we do not have evidence of this”.

63. The Claimant sought judicial review of that decision in proceedings commenced in February 2023. Permission to apply for judicial review was refused on the papers and I upheld the refusal at the hearing of the Claimant’s orally renewed application on 7 th June 2023. Permission was refused on the basis that the Claimant had an adequate alternative remedy namely her right of appeal to the county court pursuant to section 204 of the Act .

64. The Claimant made a further purported application to the Defendant on 7 th August 2023. On 10 th October 2023 the Defendant declined to accept that as a fresh application having interviewed the Claimant on 7 th September 2023. In its letter of 12 th April 2024 the Defendant said that in that interview the Claimant had not provided evidence of new facts but instead had made new arguments which were, in the Defendant’s assessment, based on a misunderstanding of my judgment in the judicial review proceedings.

65. On 6 th November 2023 the Claimant emailed the Defendant requesting assistance with her “homeless situation”. The Claimant said that “this is a fresh application with new medical evidence not submitted previously which is currently with my GP for interpretation and submission to you”.

66. The further material was sent to the Defendant with the Claimant’s letter of 29 th November 2023. In that letter the Claimant repeated her assertion that she was vulnerable and, accordingly, in priority need because of “my electrohypersensitivity disability and associated health conditions”. The Claimant set out the ways in which she contended that the electrohypersensitivity placed her “at a much greater risk if I am on the streets” in terms which mirrored the points she had made in the review request of 3 rd November 2022. She then said that “my new medical evidence which has been submitted to you is given by specialist Dr Downing of Harley Street and Dr Jordi Serra of King’s College Hospital London.”

67. Dr Serra’s report of 10 th May 2018 was provided. Dr Serra was described as a Consultant in Clinical Neurophysiology at King’s College Hospital. The report took the form of a letter to the Claimant’s GP. It sets out the results of a microneurography recording made on 28 th December 2017. Dr Serra said: “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.”

68. Dr Damien Downing’s report also took the form of a letter to the Claimant’s GP. The letter was dated 4 th October 2023. Dr Downing gave his qualifications as “MBBS MRSB” – the former is a standard medical qualification and the latter appears to indicate that Dr Downing was a member of the Royal Society of Biology.

69. Dr Downing began by saying: “I think you may have been expecting to hear from me; I had a consultation with Ms Lyrae recently. My understanding is that she is in dispute with Somerset County Council regarding the degree of her vulnerability to the various adverse effects of homeless circumstances, and therefore the grounds for them to provide suitable accommodation for her. She has asked me to write to you providing an impact assessment of sorts, in order for you to provide a letter or report to the council. I am also given to understand that there is no form provided by the council to be completed, no letter of request, and as far as I can see no clear definition of homelessness or of vulnerability. If I have misunderstood any of this, I would be extremely grateful if you could put me right.”

70. Dr Downing described his experience beginning by saying: “As background, I have practised what we now call ecological medicine for 40 years. This deals with the interaction of individuals with the environment; in that we include nutrition, allergies and sensitivities, toxic exposures, lifestyle factors. I am currently the President of the British Society for Ecological Medicine. I have that many years’ experience of dealing with allergies, sensitivities and other adverse reactions.”

71. He then said: “ Findings Ms Lyrae 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. Impact The question I am asked is; Does her condition of electro hypersensitivity make Ms Lyrae significantly more vulnerable to the consequences of homelessness? In my medical opinion Ms Lyrae’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. Cognitive impairment She experiences what is colloquially known as brain fog, clearly and markedly exacerbated by exposure to any radio-frequency radiation, including that from wi-Fi base stations and that from mobile telephones. This entails impairment of memory, concentration and thinking. It is often accompanied by severe acute head pain, and inevitably leads to problems with everyday functions. For example, memory impairment may cause you to forget that you have a kettle boiling or food cooking, and this could lead to a fire risk, whereas, suitable non-wifi accommodation will eliminate this risk. Syncopal attacks Exposure to Wi-Fi base stations specifically can cause her to have a blackout or syncope. This can last between one-two hours; there are no prodromata or warning signs. This can cause accidental self harm, if for instance she is holding a container of boiling water or a sharp knife, and she could also sustain a head injury or other trauma due to a fall. It is reasonable to consider this as being no different to an epileptic seizure and the consequences that flow from it. There is no doubt that these symptoms and their consequences will be, and indeed are already, exacerbated by the circumstances of homelessness, and that in turn they considerably increase her vulnerability to these circumstances.”

72. The Defendant’s decision that the Claimant’s correspondence did not amount to a homeless application was set out in its letter of 12 th April 2024. The letter began by saying that no application had been accepted because the Defendant 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”.

73. The letter referred to the decision on the previous application thus: “On the date above you made a previous application for housing assistance to this council. We then reached a decision on your application and found you to be not in priority need as follows:

1. We found you not to be in priority need having had regard to your medical conditions. In particular you assert that you suffer from electro-hypersensitivy disorder (“EHD”).

2. You asked us to take into account two awards from the First tier Tribunal which you said showed that you have this condition. However, we asked you to provide the medical material underlying those decisions. We do not consider that we can take them as evidence of those conditions, or that you are vulnerable as a result, as they do not disclose what evidence there was, and you have refused to provide it. You still have not provided that evidence, since January 2023. We also note that the award of 25 September 2019 was only valid until 2 January 2024 and so is now out of date. We have to make a decision based on the current evidence.

3. We also noted that there is no evidence that even if you have EHD, this makes you vulnerable as explained in caselaw, including Hotak v LB Southwark.”

74. The letter was written by the Defendant’s Case Manager, Vici Macpherson, and Miss Macpherson said that the question was to be approached by reference to the decision in Rikha Begum . The effect of that decision was summarized thus: “The court in the Rikha Begum case decided that: It is for an applicant making a subsequent application to identify the new facts. If an application purports to reveal new facts, but the local authority, without further investigation, concludes that the facts are not new, or are fanciful or trivial, they can reject the application. Whether facts are fanciful or trivial depends on the facts of the case.”

75. The reasons for the decision were set out in these terms: “I have reached this decision for the following reasons:

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.” Discussion and Analysis.

76. The Defendant’s letter of 12 th April 2024 made reference to the approach articulated in Rikha Begum . The Court of Appeal decision in Ivory was not handed down until 17 th January 2025. The Defendant is not, therefore, to be criticized for failing to formulate its decision in terms mirroring the language used by the Court of Appeal in Ivory . It is, nonetheless, necessary to consider whether the approach taken by the Defendant amounted in substance to the application of the test as set out in that case.

77. In relation to Dr Downing’s report Miss Rowlands placed considerable emphasis on [50] of Newey LJ’s judgment. Newey LJ said there: “I do not consider that Dr Okon-Rocha’s report of itself represents a new ‘fact’ such as would require the authority to entertain Ms Ivory’s new application. As I see it, the report provides evidence of certain facts (in particular, that in 2015-2016 Ms Ivory ‘did not have the capacity to keep her tenancy on account of her mental disorders’), but does not itself represent a relevant ‘fact’.”

78. Miss Rowlands relied on that passage to say that the fact of a report being put forward which had not been relied upon before was not of itself a new fact. She said that as a consequence the Defendant had been entitled to disregard the report of Dr Downing on the basis that the mere fact of a report did not amount to a new fact. However, that assertion does not assist here because it fails to take account of the point made by Males LJ at [106(4)] that to disregard fresh evidence of a previously rejected fact would be “an obvious injustice”. It is also of note that at [43(iv)] Newey LJ envisaged new evidence of a previously asserted fact being potentially relevant. Finally, it is significant that on the facts of Ivory both Newey LJ (at [51]) and Males LJ (at[107]) concluded that expert medical evidence supporting the contention that the applicant suffered from a condition which had not been accepted by the authority in relation to the previous application was significant new evidence.

79. The approach identified in Ivory required the Defendant to have regard to the nature of the earlier application; to consider the decision made on that application; and then to consider whether against that background the further purported application was in fact a new application. In doing so it had to keep in mind the low hurdle to be crossed at this threshold stage and to refrain from the investigation which would become appropriate once the application had been accepted and the Defendant was investigating whether it was well-founded.

80. As I will now explain the Defendant’s approach to the application made by the Claimant on 6 th November 2023 involved failings in each of those three aspects. Those failings went beyond any scope for rational differences of interpretation and had the effect that the Defendant failed to apply the correct approach to the application.

81. The Defendant’s decision of 12 th April 2024 was based on a mischaracterization of the decision of 14 th October 2022 as confirmed on review. The Defendant said that there had been three elements in that decision. The Defendant was correct to say that in the earlier decision its predecessor had concluded that the Claimant had not shown that she was suffering from electrohypersensitivity. However, the Defendant then went on to mischaracterize the earlier decision by saying that it had been noted that even if the Claimant did suffer from electrohypersensitivity there was no evidence that this made her vulnerable for the purposes of the Act . This suggests that the earlier decision was made on an alternative basis namely that the Defendant’s predecessor had concluded that even if the diagnosis of electrohypersensitivity were to be accepted then the resulting symptoms did not give rise to vulnerability. That would have been a potential basis for the earlier decision but it was not in fact the basis on which it was made and the earlier decision had not been reached on that basis even as an alternative. Neither the decision of 14 th October 2022 nor the review of that decision took account of the asserted symptoms of electrohypersensitivity and then considered whether those made the Claimant vulnerable. Instead, the Defendant’s predecessor proceeded on the basis that the Claimant had not shown that she was suffering from electrohypersensitivity and as a consequence did not take the asserted symptoms into account.

82. The failings in the Defendant’s approach to the reports of Dr Downing and of Dr Serra were even more 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.

83. 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 Defendant said that “Dr Downing’s ‘impact statement’ does not give a diagnosis” (original emphasis); that Dr Downing was not addressing matters specific to the Claimant; and that he was not giving independent evidence based on an examination of the Claimant. In fact, however, Dr Downing: i) Said that he had had a consultation with the Claimant. ii) Described the symptoms reported by the Claimant and did so under the heading “findings”. iii) Set out under the same heading his view as to how electrohypersensitivity had been triggered in the Claimant’s case and said that the Claimant had passed “several cross-checks we use to confirm diagnoses”. iv) In the same section explained his interpretation of Dr Serra’s report indicating that he regarded it as supporting the Claimant’s contention. v) Under the headings of “impact”, “cognitive impairment”, and “syncopal attacks” Dr Downing addressed the effect of electrohypersensitivity on the Claimant. It is correct that he made reference to the general consequences of such matters but this part of Dr Downing’s report was also addressing the effect on the Claimant herself. Thus he said that “she experiences … brain-fog” and “exposure to WI-FI base stations … can cause her to have a blackout”.

84. The conclusions which Dr Downing reached may or may not be correct and his diagnosis may or may not be mistaken. Nonetheless, he was clearly purporting to set out a diagnosis of the Claimant’s condition which was based on his assessment of her at a consultation and was pointing to symptoms affected her which were a consequence of the condition he had diagnosed.

85. Miss Rowlands submitted that the passage in the Defendant’s decision letter saying that Dr Downing “does not give any independent evidence from having examined you or confirm any evidence” should be read as accepting that there had been an examination but indicating that this had not produced fresh evidence. I do not accept that is a permissible interpretation of those words. Rather the Defendant was clearly indicating in those words that it did not accept that Dr Downing had examined the Claimant.

86. The Defendant’s decision letter then said “as we already know about the EHD, the report does not provide any new facts”. That appears to be saying that the Defendant’s predecessor had accepted that the Claimant was suffering from electrohypersensitivity but, as explained above, the reverse was the position. The Defendant and its predecessor knew that the Claimant was asserting that she suffered from electrohypersensitivity but that assertion had been rejected previously.

87. 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. In the words of Phillips LJ it was “significant fresh evidence in support of a previously made factual assertion”.

88. 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.

89. It follows that not only did the Defendant 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.

90. As a consequence the Defendant’s approach was flawed and was wrong in law. Although it 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 12 th April 2024 falls to be quashed. Is Relief precluded by Section 31(2A) of the Senior Courts Act 1981 ?

91. Section 31 (2A) provides that the court must refuse to grant relief by way of judicial review if it appears to the court to be “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.

92. In R (Bradbury) v Brecon Beacons NPA [2025] EWCA Civ 489 at [71] – [75] Lewis LJ explained the approach to be taken when considering the application of section 31 (2A). The following aspects of that guidance are of particular relevance here: i) At [71] Lewis LJ said: “In relation to section 31 (2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31 (2A) are unlikely to be satisfied.” ii) At [74] he explained that the requirement that it is highly likely that there would have been no substantial difference is “a high test to surmount” adding: “The section emphatically does not require the court to embark on an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31 (2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.”

93. The issue here is whether applying the correct test and interpreting the material correctly the Defendant would nonetheless have been highly likely to conclude that the Claimant had not made a fresh application. Miss Rowlands said that because the report of Dr Downing was not to be seen as being significant fresh evidence then the same result was highly likely. I do not accept that contention. I have already explained my assessment of how Dr Downing’s report is to be interpreted. 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.

94. It follows that relief is not precluded by section 31 (2A). Conclusion.

95. Accordingly, the Defendant’s decision cannot stand and must be quashed.

96. It is necessary for the Claimant to understand that what is being quashed is solely the Defendant's decision that the application of November 2023 was not a fresh application.

97. It will now be necessary for the Defendant to consider afresh whether that application was a fresh application. It will have to do so in light of the approach set out in Ivory and in light of the assessment above in relation to the permissible interpretations of the original decision and of Dr Downing’s report.

98. However, even if the November 2023 application is accepted as being a fresh application that does not mean that the Defendant is required to find that the Claimant is vulnerable for the purposes of the Act . That is a question which will have to be addressed by the Defendant if the application is accepted as being a new application. It may be that the Defendant will find that the Claimant suffers from electrohypersensitivity and that this makes her vulnerable for the purposes of the Act . Alternatively, it may be that the Defendant will find either that the electrohypersensitivity is not established or that the symptoms flowing from it do not make the Claimant vulnerable. Those are matters for the future. They are not addressed in this judgment and the order to be made will not predetermine the outcome of that exercise.