COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
the late Recorder Robin Spon-Smith
sitting in the Wandsworth County Court on 31 May 2007.
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE WILSON
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LONDON BOROUGH OF WANDSWORTH |
Appellant |
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- and - |
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PHILLIP ALLISON |
Respondent |
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Mr. Allison neither attended nor was he represented at the hearing of the appeal
Mr David Lintott (instructed by Messrs Ashford - Solicitors) for the Appellant
Hearing date : 7th March 2008
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Crown Copyright ©
Lord Justice Wall :
Introduction
The essential and undisputed facts
The legislation
189 Priority need for accommodation
(1) The following have a priority need for accommodation—
(c) a person who is vulnerable as a result of physical disability or other special reason.
The relevant authorities
It is that "a point of law" includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, to which I add, also of irrationality and (in) adequacy of reasons. This broad construction of the provision is supported by the somewhat wider or more immediate power to vary given to the county court by section 204(3) than the High Court normally exercises in its judicial review jurisdiction.
Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.
The Council must consider whether Mr Pereira is a person who is vulnerable as a result of mental illness or handicap or for other special reason. Thus, the Council must ask itself whether Mr Pereira is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects.
As I have said, the appeal lies only on a point of law, and, within the Wednesbury type formulation given by Lord Bingham, matters of fact, discretion and judgment on such an issue are essentially matters for the local housing authority. Given the nature of the statutory scheme, which requires authorities administering it to determine on a case by case basis quite complex questions involving the weighing of policy issues and identification of priorities concerning the interests of others as well as those of any individual applicant, courts should tread warily before interfering. Lord Walker of Gestingthorpe acknowledged the complexity of the task for housing authority administrators in the following passage from his speech in Runa Begum, at paragraph 114 of his speech:
"It is apparent that the process [by which a homeless person becomes entitled to the performance of the full housing duty] involves some important elements of official discretion, and also issues which (although not properly described as involving the exercise of discretion) do call for the exercise of evaluative judgment.
Establishing priority need may call for the exercise, and sometimes for a very difficult exercise of evaluative judgment. The identification of a 'vulnerable' person may present real problems."
(a) fact finding is a matter for the local authority: moreover the appeal is on questions of law only;
(b) questions of discretion or judgment are generally a matter for the local authority. The court should be particularly slow to interfere where the subject matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker. The homelessness legislation is a classic example of such a scheme, and the vulnerability provisions provide the clearest example within it;
(c) vulnerability assessments involve detailed questions of fact and judgment of a type local authorities are particularly well equipped to investigate and answer.
Given that each authority is charged with local application of a national scheme of priorities put against its own burden of homeless persons and finite resources, such decisions are often likely to be highly judgmental. In the context of balancing the priorities of such persons a local housing authority is likely to be better placed in most instances for making such a judgment.
The medical evidence
(1) a pro forma statement from Mr. Allison's general practitioner dated 23 November 2005 giving a main diagnosis of hypertension and stating that he should refrain from his usual occupation for one year; (nothing turns on this report)
(2) a discharge summary report from the Hospital dated 11 September 2006 stating that Mr. Allison had presented to the Hospital on 8 September 2006 "with acute bilateral leg swelling having just returned on a 15hr flight from the Philippines." The summary then adds that Mr. Allison had "neglected to keep up his warfarin intake for the previous four days". The relevant features identified in the discharge summary were that both his legs were "symmetrically affected by pitting odema from foot to hip". A "CT abdo/pelvis detected a pelvic DVT". Mr. Allison was treated with warfarin, and was "re-instated with the on-site anticoagulation clinic".
An addendum to the discharge summary stated that: -
"From a medical point of view, it would be most appreciated if temporary accommodation could be made available to Mr. Allison considering the gravity of his diagnosis. It has been noted that he has a history of Raynaud's phenomenon which is, by definition, precipitated by cold exposure and which is associated with severe pain largely unresponsive to medical therapy".
The medication prescribed included warfarin.
(3) Wandsworth referred the matter to its medical adviser, Dr. John W Keen, with a request to consider "priority need on medical grounds". On 16 October 2006, Dr. Keen reported in the following terms: -
"A DVT (blood clot) is a one-off treatable episode only, and with compliance with medication (warfarin) there is no particular risk of recurrence.
The other medical issues appear minor only and in particular his Raynaud's disease as asserted is not such as to necessitate current treatment.
Based on the information available, I make no housing recommendation."
Wandsworth accepted Dr. Keen's advice
(4) On 25 October there was a letter from Dr. Keith Gomez, a locum consultant haematologist at the Hospital, addressed to Mr. Allison's solicitor. Having briefly set out the patient's history, Dr. Gomez continued: -
From a haematological point of view, his recurrent Venous Thromboses are an indication for long term anti-coagulation. Following recent thrombotic events there is a high risk of recurrence unless a (patient) is adequately anti-coagulated. The risk of recurrence is increased by dehydration and inter current medical problems such as infection all of which are more likely to occur in an individual who is homeless. Therefore it is likely that without adequate shelter his thrombotic complications are likely to recur causing more significant morbidity and even possibly mortality.
It is imperative that Mr. Allison attends the anti-coagulation clinic and as he had no address at which we can write to him, I would be grateful if you can ensure that he contacts the office on the above number to arrange a further appointment."
(5) On 2 November 2006, there was a further letter from Dr. Gomez, making it clear that the Hospital's anti-coagulant clinic had not formally assessed Mr Allison for more than a year. The relevant portion of the letter reads:-
As you point out a number of times in your letters any of the expected problems that Mr. Allison may face can be deduced by common sense. I agree with this, but to my knowledge there are no studies in the medical literature specifically addressing the impact of homelessness on the occurrence of deep vein thrombosis. Therefore I am unable to give any special guidance on the effect of his homelessness on his absolute risk of recurrence. I agree with all of your comments regarding the impact of his homelessness and am happy to state that in my opinion being homeless increases the risk of recurrence. However, I cannot find any specific data to support this."
(6) On 21 November 2006, Dr D.J.R.Morgan, one of the two consultant physicians in the relevant department of the Hospital wrote to Mr. Allison's solicitor. Having referred to the discharge summary, the relevant part of this letter reads: -
It is clear that this gentleman has significant venous disease and has suffered recurrent venous thrombotic effects, necessitating long term anti-coagulant therapy. Such patients are benefited by having a regular domicile and good healthcare supervision with primary care physicians managing their circumstances. It is noted that he reported symptoms of Raynaud's disease, however, during his admission there was no clinical evidence of this.
Raynaud's disease is a disorder of arterial function resulting in temperature related spasm of the blood flow to the extremities. People who suffer from this condition are benefited from being in an ambient warm environment to minimise the effects of cold on their peripheral circulation.
It is difficult to provide a very strong case medically to support his petition for permanent housing on the basis of his initial assessment in September. It would be appropriate for him to be referred to a medical clinic or a rheumatology specialist who has an interest in Raynaud's disease to give a more specific assessment regarding this complaint should you wish to use this in court proceedings.
With regard to this thromboembolic disease he could be well managed by primary care physicians who could supervise his anti-coagulant medication together with his other cardiovascular medication for high blood pressure and raised cholesterol. The circumstance is best provided if he has a firm regular domicile and an associated general practitioner."
(7) On 27 December 2006 there is a letter from Mr Allison's general practitioner, setting out the medication prescribed for him. The following sentences in the letter are relevant.
"It is extremely important that he take the warfarin regularly and that this is monitored with blood testing in order to present recurrence. I suspect that homelessness does not encourage this stability and monitoring and therefore could affect his physical health".
At the end of the letter, having listed the medication Mr. Allison is taking for his hypertension, the doctor adds:-
"I am unable to confirm that the patient has Raynaud's disease, as I do not have his medical records as yet."
(8) On the same day, there is a letter from Dr. Frances Matthey, consultant haematologist at the Hospital. This was in response to a request dated 19 December from Mr Allison's solicitors for a report that could confirm "the positive conclusions referred to above detailing the increase risk to occurrence (of thrombosis) due to homelessness". Dr Matthey's substantive response is in a letter dated 5 January 2007. This identifies and reports on a number of studies assessing the risk of a second clot in patients who have had one episode of spontaneous DVT. It also contains a discussion of the safety of the drug warfarin, with particular reference to two identified studies. Dr Matthey reports the need for patients receiving warfarin to be "appropriately monitored". The letter concludes with this paragraph:-
Given the above, a patient who is homeless may well be significantly disadvantaged in that he / she may have considerable difficulty attending the anticoagulant clinic appointments (when the anticoagulant effect of warfarin is monitored and the dose adjusted as necessary), may find it difficult to collect and maintain the necessary prescription for warfarin, and hence may also have difficulty adhering to the strict dosing schedule of the warfarin. The sum consequence of these issues is that the state of homelessness may significantly contribute to the risk of recurrence of venous thromboembolism and, indeed, to the risk of bleeding which may occasionally be fatal.
For these reasons, I fully support Mr. Allison's application for accommodation.
(9) On 9 January 2007, Dr Keen was asked by Wandsworth to consider all the medical evidence on file, with particular reference to the letter from Dr Matthey summarised at (8) above. Dr Keen responded on 15 January 2007 with the following advice:-
"My advice of 16 October remains applicable. In addition, compliance with warfarin therapy is not an onerous duty, being merely the consumption of one / two tablets each day and attendance at a clinic for occasional blood tests. With continued compliance, there is no particular risk of further thrombosis.
I continue to make no housing recommendation.
Should Mr. Allison be homeless, I feel that there would be a risk to his life even. He is not supposed to walk for hours daily, he needs to avoid cold weather conditions, he has had several hospital admissions due to DVT and being homeless would be dangerous to him over and above a person who is healthy. In my opinion homelessness would put him at risk over and above that raising (sic) solely from destitution. However, Mr. Allison is able to look for accommodation at present. He needs advice regarding hostel accommodation if the Housing Department does not take responsibility for housing him.
Slightly later, under a different heading, the same social worker writes: -
Again, should Mr. Allison be homeless, his independent walking and travelling could be at risk because of both DVT and Raynaud's Syndrome.
The decision-maker's analysis of the medical evidence and the reasons for her decision
I note from (Pereira) that the test which should be applied when assessing vulnerability under section 189(1) of (the Act) is whether the applicant is, when homeless, less able to fend for himself than the ordinary homeless person so that injury detriment to him / her will result when a less vulnerable person would be able to cope without harmful effects.
These reports confirm that you have been diagnosed with, and is being treated for (sic) DVT, which I have been advised by (Dr. Keen) is blood clot, as well as hypertension. The Hospital discharge summary also indicated that there is a history of Raynaud's phenomenon, although, Dr. Baker, in his report dated 27 December 2006 stated that he is unable to confirm this diagnosis, as she does not have your full medical records. Therefore, it is evident that you are not currently being treated for this condition.
In relation to your DVT, it is noted that you were admitted to hospital on 7th September 2006 with acute bilateral leg swelling, and discharged on 11th September 2006. The hospital report stated that you had just returned to the UK on a 15-hour flight and had neglected to take your medication (Warfarin) for the preceding 4 days.
The conclusion as stated in the discharge summary was that you are re-started on your medication (Warfarin) and no additional anti-coagulation was indicated. Therefore, it is reasonable to deduce that with compliance with your medication, there is no particular risk of recurrence. Further, there is no information to suggest that you would not be able to comply with your medication when homeless. This view is consistent with the recommendation from (Dr Keen) who confirmed that compliance with Warfarin is not an onerous duty, as this consist (sic) of merely the consumption of one / two tablets each day.
I have since considered Dr Matthey's previous reports which were later forwarded by your representatives. The said reports did not support the view that there is an increased risk to DVT due to homelessness. Equally, your GP also did not confirm any increased risk to DVT due to homelessness. At most, Dr Baker in her report dated 27th December 2006 stated "I suspect that being homeless does not encourage this stability and therefore could affect his physical health", a very speculative and tentative assessment. In any event, whilst it is reasonable to expect the ordinary homeless person to lack stability, and their physical health could be affected it is also reasonable to expect someone who does not lack cognition and is orientated in time space and person to take one or two tablet daily for health reasons. (Emphasis in the original).
This assertion relies on the occurrence of many probable factors which may or may no occur. It is equally reasonable to consider the other end of the spectrum, which includes the fact that you may not be without shelter (if you are able to make our own housing arrangements). You may not forget to take your medication (and it would seem that barring the 4-day period mentioned above you have maintained a good self-medication regime). You may not suffer any infections or dehydration as not all homeless people suffer such and as such may not have any thrombotic complications. All these parameters show that fatality seems very distant if considered in reverse to the comments of Dr. Gomez.
Therefore, having considered the various medical reports, as well as the recommendation from (Dr Keen) (my emphasis), I am satisfied that DVT is not a condition that would render you incapable of fending for yourself when homeless if you comply with the self-medication regime (daily dose of Warfarin) and there is nothing preventing you from doing so. Therefore I am satisfied that you cannot reasonably be considered to be vulnerable due to your DVT.
Your representatives have submitted that you have also been diagnosed as suffering from Raynaud's Phenomenon, which is precipitated by cold exposure, and associated with severe pain. They added that the Council's approach to the issue of vulnerability is flawed, and that the severe pain in your hands and feet can only be avoided, and then remedied by ensuring that you are not exposed to cold. Your representatives further stated that when homeless, you will suffer repeated attacks, and that these can lead to gangrene and the possible need for limb removal surgery. This claim made by your representatives is in my opinion highly speculative and at the far extreme of the homelessness spectrum. It is not based on any medical information specifically related to your case. It is also possible that you may not be attacked, suffer gangrene and have your limbs removed.
I have been advised that Raynaud's disease is a condition in which the blood flow to the fingers is restricted by excessive, inappropriate vasoconstriction, with little provocation. The exact cause is not understood, but the effect is cold, white fingers with pins and needles, and numbness. They eventually turn blue, then red, and are sometimes quite painful. In the worst cases the reduced blood flow can lead to damaged skin on the fingertips. In the less severe scenario they only create a cold effect causing pins and needles and numbness.
Sometimes, more rarely, it is caused by another condition and in this context it is described as 'Raynaud's phenomenon'. There are many conditions that trigger it, but most of them are rare. They are usually diseases in which the immune system is faulty and prone to attack its own tissues (auto-immune disease), such as rheumatoid arthritis, systemic lupus erythematosis (SLE) and scleroderma, or diseases that obstruct and damage blood vessels directly. Apparently, even a severely under-active thyroid gland can be responsible. Obviously any underlying conditions need to be detected and treated, but they are rare. If you are well in other respects, then such conditions are very unlikely.
Depending on the cause of the symptoms, medications may prove effective at treating Raynaud's disease. In severe cases doctors normally diagnose Calcium channel blockers or Vasodilators. In less severe cases doctors will only recommend that the patient keeps warm by wearing warm clothing rather than treatment with medication. I note that there is no information to suggest that you are in receipt of medication for this condition and as such it would be reasonable to suggest that your GP is not of the opinion that your condition is severe in nature, or to suggest that you may require surgery at some future date. Whilst this is not a determining factor in my assessment of your vulnerability, it is nonetheless a relevant consideration, as it is reasonable to expect that you would be in receipt of treatment if your condition had been as severe as your representatives suggest.
In their latest letter your representatives submitted that you have not had a regular GP for a number of years because you have been homeless. However, by your own admission, you lived in the Philippines and China from 2000 to 2004, where you were housed and supported by friends, and returned to the UK in September 2004, when you stayed with your friend until December 2005, and only returning to the UK in September 2006. Therefore it is apparent that you have spent some 5 years out of approximately the last 7 years out of the UK.
I note your representatives have previously submitted that you left the UK in 2001 and returned in September 2006, and that you have a period of approximately 30 months out of the last 69 months in this country. However, from this information provided, I have calculated that you have spent only 21 months out of the last 72 months, (to January 2007) in the UK. This is made up as May to August 2002, (3 months); January 2003-January 2003, (1 month); November 2004 to December 2005, (13 months) and September 2006 to January 2007 (4 months). In any event, which ever version of events I accept, it is reasonable to conclude that you have only spent approximately 2 years out of the last 7 years in the UK, and hence this seems the more likely explanation for your lack of a regular GP rather than your homelessness. Furthermore, in your letter dated 15th November 2005 addressed to Dr Bavoni, you stated that your usual doctor was Dr Emiliani, but that they were on sick leave. Therefore, contrary to your representative's assertion, it is evident that you did indeed have a GP, but you were not in the UK for the bulk of the last 7 years to access this service.
My opinion that your representative's claim is highly speculative is further borne out by the fact they have also submitted that despite the fact that you reported symptoms of Raynaud's Disease to Westminster Hospital and there was no investigation to confirm this diagnosis. Therefore, it is apparent that although you are claiming to be suffering from this condition, there is no confirmed diagnosis. In any event, even if I were to accept that you are suffering with this condition, it is reasonable to expect that you would be receiving some treatment for this condition had it been considered severe or disabling in nature. Therefore, I am not satisfied that this unconfirmed diagnosis is such as to render you vulnerable under the Act.
In summary, I have considered the medical problems singly, and as a composite, and the effects of these on you. I have also considered the recommendation from (Dr Keen) as well as the level of treatment being prescribed for these conditions. I am not satisfied that these medical conditions are of the type or severity such as to significantly impede your daily activities, or impair your ability to fend for yourself as described in the test case. Therefore, I am not satisfied that all the medical problems mentioned above taken singly or in combination with each other as such as to render your less able to fend for himself, as described in the Pereira test.
The judgment of the Recorder
Firstly, that (Wandsworth) failed to apply the correct test in determining whether or not Mr. Allison was in priority need. Secondly, that the authority misunderstood the evidence before them. Thirdly, that in at least one respect the authority failed to carry out appropriate enquiries.
On behalf of Mr. Allison it is said – and, strictly speaking correctly so – that that paragraph contains a misstatement of the Pereira test. The question is not whether Mr Allison would be incapable of fending for himself but whether he would be less able to fend for himself that the ordinary homeless person. The reported cases contain numerous warnings against approaching certain decision letters as though they were Acts of Parliament and from nice textual exegesis, and it seems to me that, although the wording of the paragraph that I have quoted misstates the Pereira test, it is evident from the fact that earlier in the decision letter the decision- maker had set out, entirely correctly, the test and that, as a senior reviews officer, she must have had quite considerable experience of dealing with applications under (the Act) and of issuing decision and review decision letters, I cannot say that the review decision is vitiated by what seems to be no more than a slip by somebody who would have had the correct test well in mind.
The jurisdiction which County Courts exercise on appeals under section 204 of the 1996 Act is precisely analogous with that exercised by the Administrative Court on the application of judicial review, at least so far as the court's decision-making process is concerned.
So far, what the Recorder says is plainly correct. However, he continued:-
So far as the consequential order is concerned, it is not, I think, open to the Administrative Court when quashing the decision of an administrative body to substitute its own decision, but, in relation to these appeals, the statute specifically provides, in sub-section (3) of section 204 "On appeal, the court may make such order confirming, quashing or varying the decision as it thinks fit". As I understand it, that empowers the court in an appropriate case, rather than remitting the matter to the local authority for further consideration, to make an express finding, and I have come to the conclusion that the evidence to which I have referred is so plain that it is unnecessary to refer the matter back to the local authority, and I propose to make a declaration that (Mr. Allison) is in priority need for accommodation in accordance with section 189(1)(c) of the Act.
the circumstances in which the County Court should substitute its own judgment for that of the local housing authority should be limited to cases which are so clear and plain that the court can be satisfied that there is no reasonable prospect of a different result if the matter went back for further review - that is to say a different result from the conclusion of the court. It is equally a jurisdiction to be exercised with some caution. Nevertheless, for reasons which I think will be apparent from my judgment I am satisfied that this is a sufficiently strong and plain case and that my original decision was the right one.
The next point made is this. In relation to the DVT, after referring to medical reports by Dr Matthey, the reviewing officer stated: "The said reports did not support the view that there is an increased risk of DVT due to homelessness. Equally, your GP also did not confirm any increased risk of DVT due to homelessness". It seems to me that that statement was simply wrong".
In the light of that material, it simply was not open to the writer of the decision review letter to say that the reports, and by implication the medical evidence as a whole, did not support the view that there is an increased risk of DVT due to homelessness. The statement that Mr. Allison's GP did not confirm any increased risk to DVT due to homelessness seems to me to be a complete non-point. There is one letter from her dated 27 December 2006. At that date, Mr. Allison had been registered with her practice for less than four weeks. She did not have his medical records. She had met him once only and there is no indication that she had been asked to address the issue of whether homelessness would increase the risk to DVT, although I note that she does observe that: "I suspect that being homeless does not encourage this stability" – that seems to be a reference to taking warfarin regularly – "and monitoring and, therefore, could effect his physical health". The reference to that is less than a makeweight; it is a no weight point.
That again seems to me to be a conclusion which is not justified by the material which was before the officer.
To say in the light of that there has been no diagnosis of Raynaud's Phenomenon seems to me an entirely impermissible conclusion. It does not say, "Mr Allison has a history of complaining of Raynaud's phenomenon". It says, "He has a history of Raynaud's phenomenon. It could not, in my view, be clearer.
There are two points to me made in relation to that. First of all, the passage from the discharge summary which I have just read expressly states that Raynaud's phenomenon, or the pain caused by it, is largely unresponsive to medical therapy. So, the absence of any current treatment is not at all remarkable. However, in any event, what the writer of the review decision letter should have been addressing was not the current state of the Raynaud's phenomenon, but how it would develop if he became street homeless. It is so obvious as to hardly need saying that, if one is homeless on the street, there are going to be considerable periods of time when one is suffering from cold, and again the passage which I have read states that Raynaud's Phenomenon is precipitated by cold exposure. Therefore, there was the clearest possible evidence, (a) that Mr. Allison did suffer from Renauld's Phenomenon, (b) that there was nothing at all remarkable about the fact that it was not currently the subject of any medical therapy, and (c) that it was going to be exacerbated if Mr. Allison was to become street homeless.
However, as I have made clear, I hope, I am satisfied that the authority went completely wrong in their assessment of the evidence in relation to DVT and Raynaud's. It was not simply a question of the authority making findings of fact on competing evidence, which is something they would be perfectly entitled to do. It was a question of fundamentally misunderstanding and misstating the medical evidence in important respects.
The attack on the judgment
The arguments available to Mr Allison
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 to 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 (sic) 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.
18. Dr Keen, according to the documentary evidence, is a registered medical practitioner in general practice in West London. His CV indicates that he also offers, through a business called Nowmedical, medical advice to housing authorities and social providers, a number of whom he lists, as well as to NASS and the Home Office. A section of his CV headed "MENTAL HEALTH EXPERIENCE" makes no claim to specialist training but points out that general practice involves regular contact with a wide range of mental illness, and says that his own practice both offers an NHS-funded in-house psychotherapy service and monitors and treats patients with severe mental illness. But those who rely on his opinions need to bear in mind that, notwithstanding this wide experience in general practice, he is not a qualified psychiatrist.
19. It is entirely right that local authority officers, themselves without any medical expertise, should not be expected to make their own critical evaluation of applicants' medical evidence and should have access to specialist advice about it. What would not be acceptable is seeking out advisers to support a refusal of priority need housing wherever possible. There is nothing in the material before us to suggest that Dr Keen's service is of this kind. Although he features in a number of reported homelessness cases as the local authority's medical adviser, it is a necessary feature of those cases that there has been a refusal and that his advice has therefore been negative. We do not know in how many cases he has supported a claim of priority need. One would certainly expect there to be such cases. Edward Fitzpatrick, counsel for the appellant, has therefore rightly sought to cast no adverse imputation on Dr Keen, but he submits, and we agree, that care has to be taken by local authorities not to appear to be using professional medical advisers simply to provide or shore up reasons for a refusal.
20. It is not the doctor but the local authority who has the duty of deciding whether the statutory tests of priority need are met. As has been seen, Dr Keen did not attempt to formulate his advice in the language of the Act or the cases decided under it. Yet the alternating criticisms of Mrs Shala's doctors in the decision letter show why the Community Law Partnership had felt obliged to go back to Dr Mukherjee at one point for a report cast in terms of the eventual statutory decision.
21. This is not an altogether simple matter. Medical and other advisers, while it is not their task to take the local authority's decision for it, are helpful only to the extent that they furnish material within their professional competence which addresses issues which the local authority has to decide. Local authorities are doing applicants, and themselves, a service if they direct medical (and legal) advisers' attention to these issues. But they are not entitled, nor even well advised, to demand that the opinion or advice be couched in terms of their eventual decision. Medical practitioners, on the other hand, need to direct their opinions as nearly as possible to the issue which the recipient has to decide, and may well need to be told by their patients' lawyers what that issue is. There is no single right way of dealing with this, but in our view there is no harm and some good in medical advisers directly addressing, if appropriate in exact terms, those matters within their professional competence which the local authority has to make a decision about, so long as both they and the local authority recognise that it is for the latter to make its own appraisal of every opinion in the light of the available diagnostic and evidential material.
22. It is appropriate in this light to consider the role of a practitioner such as Dr Keen. While this court in Hall v Wandsworth LBC [2005] HLR 23, §42, described his report to the local authority as constituting not merely commonsense comment but expert advice, the limited extent and character of his expertise has to be borne in mind by those using his services. As another constitution of this court pointed out in Khelassi v Brent LBC [2006] EWCA Civ 1825, §9, 22, Dr Keen is not a psychiatrist, with the result that the county court judge had been fully entitled to regard his dismissive comments on a qualified psychiatrist's report insufficiently authoritative for the local authority to rely on. In this situation a local authority weighing his comments against the report of a qualified psychiatrist must not fall into the trap of thinking that it is comparing like with like. His advice has the function of enabling the authority to understand the medical issues and to evaluate for itself the expert evidence placed before it. Absent an examination of the patient, his advice cannot itself ordinarily constitute expert evidence of the applicant's condition.
23. Dr Keen twice advised on Mrs Shala's condition without examining her. There is no rule that a doctor cannot advise on the implications of other doctors' reports without examining the patient; but if he or she does so, the decision-maker needs to take the absence of an examination into account. Local authorities who rely on such advice, and doctors who give it, may therefore need to consider – as many already do - whether to ask the applicant to consent to their having their own examination. Between these two poles, however, there is a third possibility – that the local authority's medical adviser, again with the patient's consent, may speak to the applicant's medical adviser about matters which need discussion. It may be thought, for example, that Dr Keen would have been helped by discussing with Dr Deb or Dr Mukherjee, or both, just how depressed Mrs Shala was (Dr Deb's epithet "quite" has a sizeable range of meaning) and whether the anti-depressant dosage prescribed for her reflected only moderate depression or was conditioned by factors such as her being concomitantly on other medication or a disinclination of the practitioner to over-prescribe. The caveat we would enter, because of misunderstandings which can easily arise, is that any such discussion should be informal and only an agreed minute of it, if one results, become part of the case materials.
Discussion
Epilogue
Lord Justice Wilson
Lady Justice Arden