English and Welsh Courts - Miscellaneous

CLAIM NUMBER B40CL262

IN THE CENTRAL LONDON COUNTY COURT

Date: 17/02/2016

Before:

Recorder John L. Powell QC

BETWEEN

W                                                                                                                                                                            Appellant

v

LONDON BOROUGH OF HARINGEY                                                                                                         Respondent

JUDGMENT

See: Order

Recorder John L. Powell QC

A WHAT THIS CASE IS ABOUT

1.       This is an appeal by W under s. 204 of the Housing Act 1996 against the decision on review by the respondent local housing authority ("Haringey"), upholding an earlier decision that he was not within a category of persons who are in "a priority need for accommodation", as specified in s. 189(1) of the same Act. That section identifies various categories of persons who are in such need. They include "a person who is vulnerable as a result of ... mental illness or handicap or physical disability or other special reasons. 189(1)(c). It was contended on behalf of W that he is such a person and that the review decision should be quashed.

2.       The jurisdiction conferred on the county court on an appeal under section 204 of the 1996 Act is akin to the High Court's jurisdiction on an application for judicial review. The court may therefore only quash the challenged decision if "the authority's decision if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness or bias or irrationality or bad faith but also if there is no evidence to support factual findings made or they are plainly untenable or ... if the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact": Runa Begum v Tower Hamlets London Borough Council [2003] UKHL 5 at para. 7, per Lord Bingham.

3.       The review decision was made on behalf of Haringey by Mr Minos Perdios ("the reviewer") He is an employee of Home Reviews Ltd., a company instructed by Haringey to carry out homelessness reviews on its behalf.

4.       In the appeal against the review decision, the parties were represented by counsel: Mr Marshall Williams for the Claimant and Mr Broatch for Haringey,

B THE SUPREME COURT DECISION IN HOTAK

5.       In the course of submissions both counsel made extensive reference to what is now the leading authority in this area: the Supreme Court's decision given on 29.04.15 in three conjoined appeals reported as Hotak v. London Borough of Southwark [2015] UKSC 30 ("Hotak") (the other two appeals were Kanu v London Borough of Southwark and Johnson v Solihull Metropolitan Borough Council). Lord Neuberger (with whom Lords Clarke, Wilson and Hughes agreed) delivered the main judgment in Hotak. Lady Hale delivered a separate judgment dissenting in part, but not in respects material to this case.

6.       Key points of present relevance made in Lord Neuberger's judgment:

a.       The test for vulnerability under section 189(1)(c) is whether an applicant is "significantly more vulnerable than ordinarily vulnerable" as a result of being rendered homeless (para. 53).

b.      The comparator for the purposes of that test is with an "ordinary person if made homeless" and not an "ordinary actual homeless person" (para. 58).

c.       The previously accepted description of the appropriate comparator as expressed by Hobhouse LJ in R v Camden London Borough Council, Ex p Pereira (1999) 31 HLR 317 ("Pereira" )(whether the applicant "when homeless [will be] less able to fend for himself than an ordinary homeless person") was ambiguous and imprecise (paras. 49 and 53).

d.      Expressions such as "street homelessness" and "fend for oneself' may be useful in discussions but can be dangerous if employed in a document which is intended to have legal effect (paras. 40 to 42).

e.      The required assessment is by reference to the applicant's situation if and when homeless (para. 37).

f.        The assessment is not so much a clinical assessment of an applicant's physical and mental ability but a contextual and practical assessment of his physical and mental ability if he is rendered homeless (para. 62)

g.       That assessment must take into account such services and support that would be available to the applicant if he were homeless, although third party support should only be taken into account if the authority is satisfied that as a matter of fact the third party will provide such support on a consistent and predictable basis (paras. 62 and 65).

h.      The fact that the wrong comparator has been invoked or a wrong legal assumption made does not necessarily mean that the appeal must succeed (paras. 81, 84 and 85).

i.         The public sector equality duty under section 149(1) of the Equality Act 2010 applicable to the exercise of its functions by a public authority could be fairly described as complementary to its duty under section 189 of the Housing Act 1996.

7.       In relation to assessing whether or not an applicant is vulnerable, Lord Neuberger emphasised the following particular requirements of a local authority in making its decision.

8.       First, it must pay close attention to the particular circumstances of the applicant (para. 38).

9.       Second, "the issue of vulnerability must be determined not so much by reference to each of the problems, but by reference to them when taken together. Thus the question whether an applicant is vulnerable must involve looking at his particular characteristics and situation when homeless in the round." (para 38).

10.   Third:

"each stage of the decision-making exercise as to whether an applicant with an actual or possible disability or other 'relevant protected characteristic' falls within section 189(1)(c), must be made with the equality duty well in mind', and 'must be exercised in substance, with rigour, and with an open mind'". There is a risk that such words can lead to no more than formulaic and high-minded mantras in judgments and in other documents such as section 202 reviews. It is therefore appropriate to emphasise that the equality duty, in the context of on exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (Hi) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result 'vulnerable'"(para. 78).

 

11.   Continuing (at para. 79), Lord Neuberger said that he strongly maintained his previously expressed views (in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] 1 WLR 413 at paras. 50 & 51) that a "benevolent", "realistic" and "practical" approach to the interpretation of review decisions and eschew a "nit-picking approach" was appropriate, but added that they had now to be read in the light of his remarks in Hotak at para. 78: quoted in para. 10 above).

C THE FACTS

C1 The appellant

12.   The following is apparent from  W's  statement dated 06.06.2014 and was not in dispute:

a.       W is now aged 50. He is university educated and a qualified architect and former property developer.

b.      He has a history of mental illness since he was eleven years old, including mental breakdowns.

c.       He moved from London to Glasgow where he lived for 10 years until returning to London in December 2013.

d.      Since his return he has lived at his father flat in London. This is a one bedroom flat in sheltered accommodation. His father is over 80 years old and in serious ill- health.

e.      W sleeps on the floor in his father's flat and he is not permitted to live there long-term.

 

13.   In January 2014 W applied to Haringey for housing on the grounds of homelessness. It was not disputed that he is without accommodation for the purpose of the 1996 Act (see s. 175). In particular, it was not in dispute that it is not reasonable for him to continue to occupy his father's flat (see s. 175(3)).

C2 Haringey's original decision dated 28.04.14 and review request

14.   Haringey's original decision (taken on its behalf by a homelessness officer) that W was not in priority need of accommodation, is contained in a letter to W 28.04.14.

15.   By letter dated 19.05.14 Hackney Community Law Centre ("the Law Centre"), acting on  W's  behalf, made representations as to the original decision and requested a review of the decision, pursuant to s. 202 of the 1996 Act. Further representations were made by the Law Centre in a letter dated 15.08.14. These mainly related to his history of mental illness. Other matters referred to in the letter are the risk of his relapse into alcoholism and the risk of blackouts. The letter was accompanied by  W's  statement dated 06.06.14. In the statement he describes the deterioration in his mental health, including two breakdowns and the circumstances in which he left Glasgow for London. His mother (herself very ill) terminated the tenancy of his flat in Glasgow (owned by her) and went to live with his father at his flat in London. His father suffers from very bad angina and prostate cancer.

16.    W's  counsel also drew attention to the following passage in his statement:

"We are currently taking care of each other. I am helping him with shopping and cleaning. I also help with cooking but my father has to be there in case I have a blackout.

My father has to remind me to take my medication and tell me to shower. When I have bad periods of depression he has all the housework in spite of being very old and ill. He also has to get me in and out of bed and make sure I eat

Because of my blackouts I can't cook when I am on my own. My memory is not very good and I have burnt myself on several occasions

When my anxiety is bad I have trouble using public transport. I get panic attacks. If I halve an appointment anywhere I have to allow extra timee to get off the bus if I have an attack."

C3 Medical information

17.   I was referred to the following documents obtained in the course of inquiries relating to  W's  homelessness application.

a.       A letter dated 22.01.14 from Dr Chris Matthias, a specialty doctor in psychiatry who had been responsible for  W's  care in Glasgow for the previous two and a half years,

b.      A medical assessment questionnaire dated 16.12.14 completed by Dr David Masters of Queenswood Medical Practice, a GP practice in Haringey, together with a printout dated 13.11.14 of medical records kept by the practice relating to W since he was registered with the practice on 09.12.13.

c.       A report dated 19.12.14 from a psychiatrist, Dr Jacqueline Humphreys, to  W's  GP giving her assessment of W following a clinical appointment on 11.12.14.

d.      A report dated 13.02.15 from NowMedical.

e.      A letter dated 24.04.15 from Ms Ishita Tewari, a CBT psychotherapist employed by Haringey's IAPT[1] Team

f.        Exchanges in August 2015 between the reviewer and Ms Tewari.

 

18.   Dr Mathias's report dated 22.01.14: He records that W had been his patient for the previous two and a half years and been known to his team for some time prior to this. W had been treated for generalised anxiety disorder and depression and been prescribed medications. He continued to experience some chronic anxiety symptoms which still had a "significant impact on his quality of life". While engaging well with all treatment offered, these symptoms had proven to be treatment resistant and Dr Mathias anticipated them being present "at least for the foreseeable future."

19.   Dr Masters's questionnaire answers dated 16.12.14 and medical records: Dr Masters's answers to the questionnaire include his diagnosis of  W's  condition as recurrent depression although not suicidal. To the question whether  W's  current accommodation was affecting his health, Dr Masters's answer is "Needs appropriate housing to aid recovery". The medical records describe multiple consultations at the Queenswood Medical Practice between 09.12.13 and 13.11.14.

20.   Dr Humphreys's report dated 19.12.14: She states that she saw W at her clinic on the 11.12.14 and describes his history as recounted by him, her impression and treatment plan. His history included two severe episodes of depression and anxiety, the more severe being seven years previously. Also noted is a current increase in his depression and anxiety, caused to some extent by his current housing situation and anxieties related to use of public transport, crowds and having to attend housing interviews. He said that his alcohol use had increased. Dr Humphreys's overall impression was that W was "clearly experiencing more mental difficulties at present, although not as bad as he has done in the past" and "it is obviously advantageous if we can prevent him further deteriorating". She recommended a treatment plan including medication and reference back to the Haringey IAPT team or CBT and a follow-up appointment within eight weeks.

21.   NowMedical report dated 13.02.15: NowMedical is a business established to provide medical advice to housing authorities through doctors engaged by it. This report to Haringey was provided on behalf of NowMedical by Dr James Wilson, a psychiatric adviser. It provides an assessment of medical information related to  W's  homelessness application.

22.   The NowMedical report lists the information considered, including  W's  "own declarations and those of his representatives", GP computer records, Dr Masters's questionnaire answers dated 16.12.14 and Dr Humphreys's report dated 19.12.14. There follows a brief summary of  W's  medical conditions, comments upon them and an overall assessment.

a.      W had a "longstanding history of depression and generalised anxiety disorder" with at least two acute periods in the past. However, the bulk of his treatment had had taken place in "an outpatient setting" including outpatient psychiatric appointment and counselling in various forms including CBT. Also noted is a history of alcohol dependence syndrome and neurological symptoms but no evidence suggesting W had "significant impairment in cognitive functioning".

b.      As to overall functioning, W had worked most of his adult life and been able "to display well preserved independent living skills". He had returned to London in recent years "to care for his father which is a demanding task and suggests that he does have well preserved coping skills".

c.       There was no evidence of W having "any significant risk related behavior", The "most recent report from mental health services in London in Dec 14" (presumably a reference to Dr Humphreys's report) indicated that W displayed symptoms of depression and anxiety, "although there is not significant evidence of disabling symptoms and ...he has been much more settled than previously".

 

23.   The report concludes with an overall assessment:

a.       "All this information indicates to me that the applicant would not meet the threshold for Pereira vulnerability. Indeed I would not make any housing recommendation", and

b.      "In summary, I don't think the medical issues would prevent the applicant fending for himself..."

 

24.   Ms Tewari's 24.04.15 letter: She states that she was seeing W for treatment for recurrent depression and panic disorder and was writing to ask that W be considered as a priority case for homelessness, her belief being that he was in such need.

25.   She records having first assessed W on 16.03.15 when he presented with symptoms suggestive of panic disorder as well as severe depression. She then recounts what she had been told by W:

a.       He was having daily panic attacks brought on by triggers such as leaving the house or getting on public transport or "coming out of the blue", resulting in his being paralysed with fear for a few seconds to several minutes.

b.      His experiences anxiety symptoms consisting of dizziness, a feeling of being disorientate, heart palpitations, trembling and sweating

c.       He was suffering from recurrent depression and could neglect self-care and was worried about developing problems with alcohol abuse again and related blackouts which were frightening to him

d.      He was sleeping very little most nights and spent most nights worrying about his living situation.

 

26.   Reviewer exchanges with Ms Tewari in August 2015: The reviewer telephoned Ms Tewari on 10.08.15 and made a note of his conversation with her. According to the note dated 11.08.15:

a.       He told her that her letter dated 24.04.15 appeared to be mainly going on what W had told her.

b.      She gave negative answers to his questions whether she had seen W in a state of self-neglect or unkempt and whether she had seen him feeling disorientated, having heart palpitations, trembling and sweating

c.       She gave a positive answer to his question whether W came on his own to see her.

d.      Ms Tewari stated that she was not comfortable speaking to the reviewer without consent and requested that the email her.

 

27.   By email dated 11.08.15 the reviewer put four questions to Ms Tewari, to which she replied the same day. She replied as follows;

a.       As to how often she saw W, it was weekly.

b.      As to whether he attended on his own and how, she understood that he walked but she had never asked him this.

c.       As to whether she would confirm that he told him that W was always well kempt, she denied that she had said so. In her opinion he had attended some sessions relatively well kempt, but at others less so, for example reporting that he had not looked after himself very well by not showering and looking tired and in physical pain due to back ache.

d.      As to whether W had any panic attacks in her presence, he had not,

 

C4 "Minded to" letter and Law Centre response

28.   By letter dated 26.07.15 to W and copied to the Law Centre, the reviewer gave notification that he was minded to uphold Haringey's original decision and set a deadline for any further representations.

29.   The Law Centre made further representations by letter dated 31.07.15. It disputed the reviewer's assessment of the impact of his mental health issue and referred in particular to the letter dated 24.04.15 from Haringey IAPT (that is Ms Tewari's report) and to the description therein of  W's  panic attacks (see para 24(a) above). Several passages in this letter were stressed by  W's  counsel including the following;

a.       "We submit that you have failed to consider the nature of our client's illness in assessing whether he is more vulnerable than ordinarily vulnerable. In particular, you have failed to consider the nature and extent of our client's anxiety, which is triggered and exacerbated by social interactions and public spaces. When homeless such anxiety clearly renders him significantly more vulnerable than ordinarily vulnerable as he would constantly be exposed to environments and situations likely to trigger panic attacks. He would not be able to cope with sleeping in crowded hostels or public spaces or negotiating with landlords or hostel managers. His belongings and personal safety would be at risk as he would be in a near-constant state of anxiety and would be unable to defend himself or navigate difficult situations

b.      "Being 'significantly' more vulnerable than ordinarily vulnerable by reason of mental illness must in this context be interpreted not only as a test of severity but as an assessment of the particular nature of the mental illness in the particular context of homeless." [words in bold emphasised in the letter]

c.       "Any deterioration suffered when homeless will therefore render our client significantly more vulnerable than ordinarily vulnerable as it would be deterioration relative to a pre-existing mental illness which has at all time have been severe enough to cause suicidal ideation. It is not merely a question of suffering generic harm by undergoing the experience of homelessness."

d.      "Using the comparator of an ordinary person if made homeless, we submit that the cumulative impact of  W's  anxiety, depression, history of suicidal ideation, risk of relapse into alcoholism, back pain and unexplained blackouts cumulatively render him significantly more vulnerable than ordinarily vulnerable. When homeless, he suffers or will suffer greater detriment than an ordinary homeless person without his difficulties."

 

C5 Haringey's decision on review

30.   The review decision is contained in a letter dated 12.08.15 to W and copied to the Law Centre. The reviewer upheld Haringey's original decision, stating that he was satisfied that W was homeless, eligible of assistance but not in priority need of accommodation.

31.   Material considered: In his letter the reviewer lists the material he had taken into account, including;

a.       the medical information referred to in paragraph 17 above;

b.      representations made the Law Centre, in particular by letters dated 19.05.14 and 31.07.15;

c.       representations made by others, including by a Haringey homelessness officer.

 

32.   He then proceeds to address the particular issues under several headings, including initially the "Test of Vulnerability" and  W's  "Medical Problems and Circumstances".

33.   Test of vulnerability: Under this heading the reviewer states the test and his conclusions. He states the test and the comparator in the terms endorsed in Hotok as quoted in paragraph 6(a) and (b) above, He further notes other points apparent from Hotak:

a.       The requirement to pay close attention to the particular circumstances of the applicant. He notes advice given in the English Homelessness Code of Guidance 2006.

b.      The required assessment should be a contextual and practical assessment of the applicant's physical and mental ability if he is rendered homeless and account taken of services and support then available to W.

34.   Under the same heading the reviewer states his primary conclusion in answer to the question whether W was "significantly more vulnerable than an ordinary person who is homeless" as follows:

 

"Taking into account the information in front of me, I am satisfied that your circumstances are not sufficiently serious for me to conclude that you are vulnerable. This is because I am not satisfied that when homeless you are significantly more vulnerable than an ordinarily vulnerable", [my underlining] (para. 4 of the review decision)

 

35.   The reviewer states that he had reached his decision with the public sector equality duty "well in mind and carried out this exercise in substance in substance, with rigour and with an open mind". He further states that he had "focused very sharply" on points (i) to (iv) in Lord Neuberger's judgment quoted in paragraph 10 above.

36.   Medical Problems and Circumstances: Under this heading he makes specific reference to the questionnaire answered by Dr Masters, medical records and to Ms Tewari's letter (see para. 16(e) above). He reiterates his conclusion: "However, taking into account your medical problems and circumstances singularly and/or as a whole I am not satisfied that these are such that you are significantly more vulnerable than ordinarily vulnerable".

37.   The reviewer then goes on to set out his reasons for this conclusion in detail under the following headings:

a.     Mental Health Issues.

b.     Physical Health Problems.

c.     Treatment and Appointments.

d.     Alcohol Abuse.

 

38.   Mental Health Issues: The reviewer notes that these issues related specifically to depression and (mainly) anxiety. He refers to Dr Humphreys's report dated 19.12.14) and Ms Tewari's letter dated 16.03.15, including the latter's stating that W "presented with symptoms of panic disorder as well as severe depression".

39.   There follows a passage which was the subject of particular focus by  W's  counsel:"

"Whilst I acknowledge your diagnoses I am not satisfied that this means that you are significantly more vulnerable than ordinarily vulnerable. There are several reasons for this conclusion. The key thing is not actually your diagnosis but how any mental health issues do have impact on your ability to manage your own affairs and deal with being homeless. Doing this it is evident from the medical questionnaire completed by Dr Masters (16^th December 2014) that your mental health issue have little or no impact on your ability to fend for yourself and manage your own affairs. Dr Masters advised me that you do not need any overnight care and neither do you require any assistance with daily activities. He also made no reference that you needed any support from other services to maintain independent living." (para. 9 of the review letter)

 

40.   The reviewer then addresses evidence as to self-care, anxiety, memory loss, ability to access to medication, mood and motivation and risk-related behavior. In respect of each of these matters he reaches conclusions consistent with his primary conclusion.

41.   Physical Health Problems: The reviewer while noting previously reported neurological symptoms, did not accept that these were ongoing and as not satisfied that W suffered these symptoms "significantly more than the ordinarily vulnerable". The reviewer derived support for this conclusion from the fact that W was reported by his GP, Dr Masters, as not having mobility problems and not needing overnight care or assistance with activities of daily living,

42.   Treatments and Appointments: The reviewer was satisfied that W, even if homeless, could take medication, attend his GP surgery as necessary and arrange alcohol therapy. None of the medications needed any special storage requirements such as refrigeration.

43.   Alcohol Abuse: While acknowledging that medical records evidenced alcohol consumption as one of the main concerns, the reviewer considered that  W's  consumption was not such as to have any impact of his ability to manage his affairs or keep himself safe. He again invoked in support what Dr Masters had reported (see para. 19 above) and also the fact that W could access alcohol reduction services even if made homeless.

44.   Other Special Reason: The reviewer considered that there was no other special reason to change his primary conclusion.

45.   He then states that he had specifically considered whether  W's  medical problems and circumstances considered as a whole (if not singly) had made him vulnerable and concluded that they did not. He continues:

"I am satisfied that there is nothing that significantly differentiates you from ordinary people who are homeless for the reasons given above. It does appear to me that your capabilities are not significantly compromised and you are quite capable of managing independently. Whilst I appreciate that it would be stressful being homeless nevertheless I am satisfied that you have sufficient... capabilities/resources to ensure you were not significantly more vulnerable than an ordinary person if mode homeless. Therefore I am satisfied you are not vulnerable as a result of any special reason." (para. 34 of the review letter)

 

46.   Conclusion: The reviewer concludes with a reiteration of his primary conclusion and his decision that W was not in priority need of accommodation.

D SUBMISSIONS BY COUNSEL

D1 Submissions for the Appellant

47.   Mr Marshall Williams submitted that the review decision was impeachable on the following grounds.

a.       Ground 1: The reviewer misapplied the test for vulnerability under section 189(1)(c) of the 1986 Act, as explained in Hotak.

b.      Ground 2: The reviewer failed to take proper or lawful account of the evidence.

c.       Ground 3: The reviewer's decision was irrational, disproportionate and frustrated the policy of the legislation.

d.      Ground 4: The reviewer failed to provide adequate reasons as to what is “significantly more vulnerable" in determining that W was not vulnerable

e.      Ground 5: The reviewer took into account irrelevant matters and failed to take into account relevant matters.

f.        Ground 6: The reviewer failed to make a composite assessment of the risk

 

D2 Submissions for the Respondent

48.   Mr Broatch for Haringey submitted that none of the grounds of appeal were made out. He emphasised the limited bases upon which a county court was entitled to quash a reviewer's decision. He objected to Mr Marshall Williams's invocation of the public sector equality duty under section 149(1) of the Equality Act 2010 on the basis that breach of that duty was not pleaded.

E CONCLUSION

E1 Appeal succeeds

49.   The appeal succeeds. On any fair and reasonable reading of the medical and other information obtained by the reviewer, in particular information relating to  W's  history of mental illness, by reference to the comparator of the "ordinary person if made homeless", W is "significantly more vulnerable than ordinarily vulnerable" if rendered homeless, given his history of mental illness. On the facts of this case, The reviewer's contrary conclusion is not consistent with application of those Hotak criteria, is not reasonably tenable on the facts and is irrational.

50.   I readily recognise that grounds of appeal against a review decision asserting that the review officer failed to take proper account of the evidence attract circumspection and wariness, at least on first impression. This is the more so when medical and other information is addressed in the review decision, as in this case. I also bear in mind cautionary judicial statements as to interference with review decisions.

51.   I accept that the reviewer in the decision letter repeatedly expresses the Hotak test for homelessness accurately and by reference to the correct comparator. I also accept Mr Broatch's submission that there are many what he called "forward-looking statements" in the decision, in the sense of statements which indicate or can be taken as indicating that the reviewer directed his mind to  W's  position if made homeless.

52.   However, the decision is flawed for the reasons stated in paragraph 49 above. The very well expressed criticism expressed in the Law Centre's letter dated 31.07.15 (quoted at para. 29 above) in relation to the reviewer's "minded to" letter, applies equally to the decision itself.

E2 The NowMedical report

53.   The flaw would seem to arise from, or at least be strongly influenced by, the NowMedical report.

54.   Dr Wilson of NowMedical did not see or examine W. That in itself is not criticism of NowMedical since NowMedical was not asked to do so. However, absent such examination, his advice to Haringey could not be taken as constituting expert evidence as to  W's  medical condition (see Shala v. Birmingham City Council [2007] EWCA Civ 624 at paras. 22 and 23.

55.   However, as an assessment of medical information in support of  W's  homelessness application, the NowMedical report is unsatisfactory for the purposes of a review decision given on 12.08.15.

56.   First, the report predated the decision of the Supreme Court in Hotak and that court's criticism of the appropriate comparator as expressed in Pereira, The conclusion in the report is stated expressly by reference to the (superseded) Pereira test of vulnerability. Moreover, several passages in the NowMedical report are redolent of assessment by reference to that test (see para. 22 above).

57.   Second, the NowMedical report is limited to commenting on the medical evidence available and provided at the date of the report, 13.02.15. The latest medical report considered in the NowMedical report is Dr Humphreys's report dated 19.12.14, which is based on her examination of W on 11.12.14. The NowMedical report predates Ms Tewari's letter dated 24.04.15 and her email reply of 16.08.15 to the reviewer. Accordingly the NowMedical report does not reflect consideration of Ms Tewari's assessment of W. She saw and assessed him on 16.03.15 and thereafter - weekly according to her email of 16.08.15.

58.   Third, in relation to  W's  overall functioning, NowMedical's assessment that he had "well preserved independent living skills" and displayed "well preserved coping skills" is at odds with  W's  own statement and medical history. The reference in the NowMedical report to W having returned to London "to care for his father" appears to be derived from no source other than  W's  statement. It does not reflect a fair and reasonable description of the reason for his moving. Nor does it reflect  W's  description of he and his father supporting (and needing the support) of each other. Moreover, the comments that he had well preserved independent living and coping skills elide the fact that W depended on his father's care.

E3 Other points on the review decision

59.   The review (dated 12.08.15) postdated the NowMedical report (13.02.15) by 6 months. In the meantime, Hotak was decided (29.04.15). Yet despite the obvious application of the superseded Pereira threshold and the conclusion expressly based on it in the NowMedical report, the reviewer did not ask NowMedical to reconsider  W's  position in light of the Hotak threshold for vulnerability,

60.   Nor did the reviewer ask NowMedical for an assessment of the medical evidence in light of Ms Tewari's letter dated 24.04.15. Although a psychotherapist and not a psychiatrist, she must be taken as having considerable experience of treating persons with mental illness. She urged in the letter that W was in priority need of homelessness assistance.

61.   The review decision was subject to close forensic analysis by Mr Marshall Williams and Mr Broatch with each referring to passages and making points supportive of his submissions and undermining of the other's submissions. It is unnecessary to decide each of the points advanced. Suffice to say as to Mr Broatch's submissions, a review decision is not saved by mere expression of the correct test for vulnerability and its purported application with reasons in support of a negative decision on an applicant's homelessness application, if the decision is plainly untenable on a fair and reasonable reading of relevant information obtained by the reviewer, particularly medical information.

E4 The Grounds of Appeal

62.   I agree with the submission advanced on behalf of W that there is insufficient focus in the review decision on the potential harm to him if made homeless, given his mental and physical health problems.

63.   I hesitate to go so far as agreeing with the criticism that the review decision in fact applied the superseded Pereira test, given express references in the review decision to Hotak and to the test of vulnerability and comparator as stated in that case, This criticism was particularly directed at the paragraphs 9 and 34 of in the review decision (quoted at paras. 39 and 45 above). Suffice to say that those passages considered alone are redolent of the Pereira test.

64.   Moreover, the questionnaire answers given by Dr Masters referred to in paragraph 9 of the review decision in support of the conclusion that W would be able to manage his affairs if made homeless, are not addressed to that circumstance and so do not support that conclusion. Those answers relate to a time when W was accommodated at his father's flat. Further, there is no reference to Dr Masters's final answer in the questionnaire, that W needed "appropriate housing to aid recovery".

65.   Indeed, given the latter answer by Dr Masters and Ms Tewari's view that W was in priority need of homelessness assistance, it is difficult to comprehend the review decision consistent with proper application of the Hotak test.

66.   In summary, I conclude that Appeal Ground 1 is made out. Although I am not satisfied that the reviewer applied the superseded Pereira test, I am satisfied that, on a fair and reasonable reading of the medical and other information obtained by him, he misapplied the Hotak test of vulnerability.

67.   I am also satisfied that Grounds 2 and 3 are made out.

68.   As to Ground 4, there was debate as to the degree of significance required by the criterion "significantly more vulnerable". I was told that there were differing views held by practitioners specialising in this area of law. I am not convinced that the term merits further definition. The search for precise meaning by reference to synonyms (for example "serious" or "substantial") or by reference to the opposite ("not significant") seems a fruitless search for unachievable certainty of meaning for a word of indefinable scope and penumbra. Moreover, "significant" is a word whose meaning varies with context. A search for meaning by reference to use in other contexts threatens error through analogy from inapposite and very different context. Suffice to say that I consider that the information available to the reviewer, on a fair and reasonable reading, indicates that the degree of significance of  W's  vulnerability is well within the core meaning of the word "significant".

69.   Ground 5 was not pursued. As to Ground 6, it does not in substance add to Grounds 1 to 3. It merits no further specific finding beyond those I have made in relation to Grounds 1 to 3.

70.   In reaching my conclusions, I have not found it necessary to have regard to the public sector equality duty and thus to address Mr Broatch's pleading objection.

71.   The appeal is allowed and I order that the review decision be quashed.

General Form of Judgment or Order

In the County Court at Central London

Claim Number

B40CL262

Date

28 April 2016

 

 

UPON HEARING Counsel for each of the parties:

 

IT IS ORDERED THAT:

 

1      The appeal is allowed to the extent that the Respondent's review decision dated 12th August 2015, made under Sections 202 and 203 of the Housing Act 1996, is quashed.

2      The Respondent is to pay the Appellant’s cost of the appeal, on a standard basis; there shall be a detailed assessment in default of agreement

3      There shall be a Public Funding assessment of the Appellant’s own legally aided costs Dated 22 February 2016.