COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
HIS HONOUR JUDGE MCKENNA
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
MR JUSTICE LIGHTMAN
| SHALA & ANOTHER
|- and -
|BIRMINGHAM CITY COUNCIL
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Ms C Rowlands (instructed by Birmingham City Council Legal Services) for the Respondent
Hearing date: Tuesday 15 May 2007
Crown Copyright ©
Lord Justice Sedley :
This is the judgment of the court.
The medical evidence
- A report dated 22 July 2003 from the Shalas' GP, Dr Elizabeth Gonzalez, diagnosed hypertension and depression and recorded low mood and constant weeping. Antidepressants had been prescribed and a psychiatric assessment was awaited.
- A second report from Dr Gonzalez dated 8 September 2004 recorded that Dr Snape, a psychologist, had examined Mrs Shala and confirmed the diagnosis of depression. It recorded that she had been under the care of a consultant psychiatrist, Dr Omoigui, who had diagnosed post-traumatic stress disorder, probably because of her missing children, but that she had been discharged following two non-attendances at appointments. In March 2004, however, she had referred herself back for psychiatric help, again recounting sleep disturbance and reluctance to leave the house, as well as financial worries and fleeting suicidal thoughts. The continuing diagnosis was depression.
"The applicant has a history of depression which has necessitated referral for psychiatric assessment; however her condition is currently being treated with citalopram, a standard Prozac equivalent anti-depressant drug alone and likewise there remains nothing to suggest her condition [is] of particular severity, nor that it has been in the past and nor that impairs her ability to function or significantly impedes her daily activities."
- On 15 December 2005 Dr Mukherjee, now Mrs Shala's GP, reported: "Mrs Shala suffers from severe post-traumatic stress disorder and is currently on high dose anti-depressants and is under the care of the Community Psychiatric Team. She also suffers from hypertension and osteoarthritis. She has also recently developed severe neck and arm pain, and has been referred to the orthopaedic triage department for assessment. All of these conditions are very debilitating and as such she is not able to work and is being cared for by her son and daughter. Both of whom are now showing signs of strain having to cope with parents that are severely debilitated."
- There was also by now a first report from Dr Deb which, although dated 7 November 2005, had not been among the materials seen by Dr Keen when he wrote his initial report of 14 November 2005. Dr Deb, an associate specialist in psychiatry with the Birmingham and Solihull Mental Health NHS Trust, wrote: "This lady is very depressed ….." The rest of the very short report noted the patient's history but also included the potentially important fact that she spoke no English.
"Further to my advice of 14 Nov 05, I note the letter from Dr Deb, the applicant's psychiatrist which confirms the applicant's diagnosis of depression. However there is no particular assertion of severity nor that psychiatric hospital admission or other substantial treatment is necessary and likewise she remains under treatment with a single standard Prozac anti-depressant drug alone."
- On 23 January 2006 Dr Mukherjee wrote two further reports. In the first he said: "I can confirm given the medical problems that Mr and Mrs Shala have that they would be more vulnerable in a homeless state than would an ordinary homeless person without any attendant medical problems." In the second he wrote "I am of the opinion that Mr and Mrs Shala would be when homeless less able to fend for themselves than ordinary homeless persons so that injury or detriment might result when a less vulnerable person would be able to cope without harmful effects." In other words, Dr Mukherjee had initially reported on vulnerability in his own words and had then been asked to report in terms of the code.
- On 1 February 2006 Dr Deb wrote a further report: "This lady suffers from post traumatic stress disorder associated with depression." The report goes on to comment on her housing conditions, evidently in the belief that it was required for a routine rehousing application.
- On 28 February 2006 Dr Deb wrote a further and fuller report on Mrs Shala, describing her enduring distress at the disappearance of her three daughters, her self-neglect and fear of going out, her nightmares and flashbacks, but noting that she had insight into her illness and its cause and was not expressing suicidal ideation. The report concluded: "This 56-year-old Kosovo asylum seeker [in fact, refugee] suffers from post-traumatic stress disorder associated with depression. She is quite unstable mentally and any prospect of being homeless will have a serious detrimental effect in her mental state. I believe because of her mental situation she is quite vulnerable and is less able to fend for herself than any person without a mental illness."
The review decision
3rd April 2006
Dear Mr & Mrs Shala
HOMELESS REVIEW PANEL
YOUR CLIENTS: MR HAMDI SHALA & MRS SABRIE SHALA
Further to our last correspondence your solicitor has now provided us with the new information they wished to supply in support of your review request. I have considered all of the evidence you have provided to-date including letters from your GP and your psychiatrist. I am now [writing to] you again under Section 203 of the Housing Act 1996 to notify you of our decision and the reasons for it.
We have considered all the evidence including:
- Your homeless application form.
- Information you provided in support of the application prior to the decision.
- Your review request and representation from Community Law Partnership, dated 7th November 2005, 9th November 2005, 11th November 2005, 14th November 2005, 19th January 2006, 26th January 2006, 3rd February 2006, 13th February 2006.
- Further medical letters provided by you dated 7th November 2005 & 15th December 2005.
- The recommendations of an independent medical advisor.
- Further medical letters provided dated 23rd January 2006 & 1st February 2006.
- Information contained in your judicial review claim form fax dated 8th November 2005.
- Additional medical letter from Dr Mukerjee dated 23rd January 2006.
- Psychiatric report dated 28th February 2006.
- Disability living allowance claim form.
In your review request you gave the following reasons why you considered the original decision to be incorrect:
- You state that you are vulnerable as former asylum seekers also because you have various health issues, namely depression/post traumatic stress disorder, pains to the legs arms and neck and hypertension. You also argue that you cannot speak English and would be vulnerable for this reason.
Detailed overleaf is the Panel's response to the queries you have raised.
As part of our ongoing enquiries I have made contact with the persons treating your medical conditions, you have also provided your own letters supporting the application for which I made further contact with your GP in order to obtain further information on your medication and dosages.
I have consulted with an independent medical advisor who is also a registered GP with a broad knowledge of the medications and treatments available for each condition. He also has experience of psychiatric health as many conditions first present and are treated at a local level. I have furnished the medical advisor with all the available evidence including your own statements and letters from your GP, including the prescription details. As previously explained in my minded letter of 17th January 2006, we have been provided with details on the specific medication you both take and what action would be expected from a medical point of view should your conditions be severe of disabling in type. The medical advisor scrutinised your housing file, all of the medical information provided and mindful of the Pereira test has made no specific housing recommendations on your case.
You have then furnished us with two more medical letters; one from Dr K Deb dated 1st February 2006, which again reiterates that you suffer from post-traumatic stress disorder associated with depression. You provided another letter from your GP, Dr Mukherjee, which states he has considered the statement provided by your legal representative, namely the "Pereira test" as he interprets "would you be more vulnerable in a homeless state than an ordinary homeless person without the attendant medical problems" for which he agrees. However this is not the test, he has furthermore not explained why he has reached this view or even demonstrated that he has applied the test correctly.
You have now provided us with a new letter from Dr Mukherjee dated 23rd January 2006 in which he has reworded his letter at your request quoting the correct Pereira test, however as previously stated he has not demonstrated that he has applied the test correctly or explained how he has reached the conclusion. I do not consider this letter changes our original decision. As previously stated, it is for the local authority to make the overall decision on vulnerability having regard to the legislation and all of the information available to us within your housing file. After balancing your overall circumstances, having regard to your own statements on how the conditions restrict you, also considering your doctors letters and submitting both to our own medical advisor for an impartial view, I have made the overall decision that I do not consider that your medical conditions render you vulnerable as a result of a physical, mental disability or other special reason. I have considered whether you are less able than an ordinary homeless person to obtain and once obtained keep accommodation and whether you are less able to fend for yourself when homeless than an ordinary homeless person, so that injury or detriment will result when a less vulnerable person would be able to cope without harmful effects. You say you cannot leave the house unless accompanied by your daughter, but we do not consider this to be a necessity, there is nothing to suggest that your condition is so severe that you cannot leave the property without your daughter, she is furthermore in receipt of jobseekers allowance, a requirement of which is that she is actively seeking employment. If as you claim she is required to care for you, and if as you claim your condition was that severe that it warranted a full-time care, she would be entitled to carers allowance and we would expect her to be claiming this. She is not your registered carer.
You have the support of your GP, the Birmingham & Solihull Mental Health Trust and your adult children. You would continue to have access to this support and your medication as a homeless person. You are in receipt of state benefits and are not destitute. You are entitled to a rent deposit through the Birmingham Bond scheme, which will assist you to identify suitable accommodation in the private sector. You are also aware of your entitlement to housing benefit, as you demonstrated when you applied on the 1st November 2005, which unfortunately left you with an unreasonable shortfall. You have full access to all advisory services in Birmingham, which again you have demonstrated an ability to access, furthermore all public sector services offer interpretation services to those where English is not a first language and help completing forms. In my opinion you have always sustained a keen interest in your housing application, you have been available to speak with me via telephone, have obviously maintained appointments with your legal representatives who have provided us with many letters and statements on your behalf, you have also been proactive in providing all the necessary information and supporting letters we have required in dealing with your case. You have not provided any information to suggest your mobility is severely impaired or that you are immobile. You have reported pains in your legs, arms and neck but the doctor has stated you await assessment, no formal diagnosis has been made and he does not comment on it severely affecting your mobility or abilities at this time.
Whilst residing at Davey Road you were able to maintain this accommodation and made attempts to take on the tenancy yourself once it became apparent that your NASS support was being withdrawn. You applied for housing benefit in your own right however they were not prepared to pay the amount your landlord required. You have always been forthcoming in accessing the services you are entitled to and seeking advice and assistance where necessary, I remain satisfied that you are capable of obtaining your own accommodation and once doing so maintaining it. I am further satisfied that you are no less able to fend for yourself than an ordinary homeless person so that injury or detriment will result when a less vulnerable person would be able to cope without harmful effects, I do not consider your medical conditions to be of a severe nature as already stated above, I am satisfied that you are receiving appropriate treatment for these and would continue to do so if you became street homeless.
In regards to you being vulnerable as former asylum seekers I do not consider this to be the case. We accept that you may have had to flee persecution and accept that you now have post-traumatic stress disorder associated with depression because of your experiences, however you are receiving appropriate medical treatment to help you deal with this. Whilst your claim for asylum was being processed you were receiving the support of (NASS) the National Asylum Support Service. Who assisted you financially and provided accommodation to you. We do not consider you have been financially burdened by coming to the country, you came here of your own volition, asylum seekers are not reimbursed for costs they occur in travelling here. I appreciate that you are required to leave accommodation made available to you whilst your asylum claim was being processed, but this was an inevitable fact that was always known to you. You were aware the accommodation being provided to you was pending your asylum claim.
You have now furnished us with new medical evidence in the form of a psychiatric report dated 28th February 2006. The report itself does not raise any new information that isn't already known to us, your doctor explains how you and your daughter have claimed the condition of post-traumatic stress disorder affects you and include your own statements. We note that it does not say you did not express any bizarre thoughts, or strange ideas. You had expressed ideas of dying but never done anything to harm yourself, you also had insight into your illness and recognised that it is due to your experiences in Kosovo and due to your three missing daughters. You have been taking medication for some years because of this condition and have informed the doctor that you are understandably concerned about the prospect of being homeless.
The doctor confirms the diagnosis already known to us and expresses her opinion that you are quite unstable mentally and that being homeless would have a serious detrimental effect on your mental state, she considers you to be vulnerable and less able to fend for herself than any person without mental illness. She has however not felt it necessary to change your medication, which you have been taking for a few years, given the alleged instability and vulnerability, which as we have previously stated is quite a standard anti-depressant treatment. We have taken on board the report but it not for the doctor to make our decision on vulnerability, she has stated her opinion with your best interests in mind but has not applied or considered the appropriate test.
We have also considered the application you have submitted for disability allowance as requested but again, with respect this is your own take on the situation and not any new documented evidence of a severe health problem that would make you any less vulnerable when homeless. You have not informed us that the benefit had been awarded but we are aware that this particular benefit is assessed on your own declarations and as such does not prove anything. We find it contradictory that you have been taking your medication for a number of years, which is a standard Prozac equivalent drug at a relatively low, [dose] . You have not been admitted to a psychiatric hospital or needed any additional intervention other than that you currently receive, there is also nothing to suggest your condition is psychotic yet you claim you cannot do the most basic tasks without the assistance of your daughter, who is not your registered carer and is herself in receipt of jobseekers allowance meaning she must be actively seeking employment. Post-traumatic stress disorder is a treatable condition, if your condition were as bad as you seem to perceive it to be, your doctor would not simply leave you on your current medication, other alternatives would be tried in order to improve your situation. Surely if your conditions were as bad as you claim the priority would be enhanced medical input.
Considering all of the evidence before me and having regard to your overall circumstances I am of the opinion that your conditions are not severe in nature or disabling. I have considered the provisions of Section 189(1)(c) of the Housing Act 1996, the code of guidance and the case of R v Camden LBC ex Pereira test, [namely], whether a person is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment will result when a less vulnerable person would be able to cope without harmful effects and have applied this to your circumstances. All relevant considerations have been made based on the information available to us at the time of this decision.
I am satisfied that you are not in priority need and accordingly must inform you that we have decided to uphold the original non-priority decision. Under Section 204 of the Housing Act 1996 you have a right to appeal to the County Court on a point of law within 21 days of this notification.
The use of medical advisers