Social Welfare Update: Vulnerability and medical evidence

Tuesday 29 October 2019

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The appellant, TG, was a 23 year old man who suffered from a number of health conditions, both physical and mental.

In relation to physical health, he was diagnosed with hypoparathyroidism: a condition which can lead to convulsions if not adequately controlled with prescription medication. Medical evidence from his consultant paediatrician stated that ‘[d]omestic circumstances for safe and proper storage of the medication are absolutely essential’.

In relation to mental health, Dr Judith Freedman had been commissioned by TG’s solicitors to provide a report on his condition. Dr Freedman is a Fellow of the Royal College of Psychiatrists who works as an independent consultant having previously been a consultant psychiatrist in psychotherapy. Following a lengthy interview with TG, she reported that his symptoms included depression, anxiety, auditory and visual hallucinations, which have told him to harm himself, leading him to cut his fingers and try to hang himself. Various diagnoses had previously been considered for him, including severe depression and Post Traumatic Stress Disorder (PTSD). In addition, he is genetically predisposed to schizophrenia. As a result of complicating factors, such as TG’s cannabis use and hypoparathyroidism, she was not able to offer a ‘firm diagnosis’. However, she noted ‘he suffers from depression and anxiety, and he is at risk for harming or even killing himself by responding to command hallucinations’. She concluded as follows:

"Although I do not have a firm diagnosis for him, the array of symptoms I described above constitute a vulnerable state. He functions at a low cognitive level, and he would find it more challenging than an ordinary person made homeless to understand his options, how he might manage, and how to keep himself safe if made homeless.

"He also is at physical risk of failing to take his medication for hypocalcaemia, secondary to hypoparathyroidism. As his doctors have stressed to him, failure to take his medication regularly would place him at risk for significant physical harm, if not death. He told me that if he was made homeless, he would not keep track of his medication. He added, "What's the point?" In other words, his depression in the face of an overwhelming situation, with which he would not know how to cope, would place him at risk for passive suicide by failing to take his medication.

"With regard to his mental health, if he is made homeless, he would be at risk for a worsening of his symptoms, including even lower self-esteem and confidence, increased use of cannabis and in turn worsening of his depression, hallucinations, and paranoid thinking. He particularly would be at risk for command hallucinations, demanding that he self-harm and/or hang himself."

This psychiatric report was provided to the respondent, Lambeth LBC, in the course of a homeless application by TG. The report was considered by the reviewing officer in the case who sought medical advice from various psychiatric advisers at Now Medical at various points during the review. None of these advisers had met with TG. Their qualifications were not of the same level as Dr Freedman’s. And an invitation to discuss their conclusions with Dr Freedman, made by TG’s solicitors, was turned down for unspecified reasons.

The reviewing officer concluded that TG was not vulnerable and did not have a priority need for the purposes of s189(1)(c) Housing Act 1996. That decision was upheld on appeal. The Court of Appeal allowed a second appeal.

In relation to TG’s physical health, the court rejected the suggestion that there had been anything wrong with the reviewing officer’s conclusion that this did not render TG vulnerable. Although the paediatrician had said that ‘[d]omestic circumstances for safe and proper storage of the medication are absolutely essential’, the basis of that assertion was not clear. The medication took the form of packs of ordinary tablets which could be stored at ambient temperature and taken with a glass of water. ‘It cannot be the case’, Henderson LJ reasoned ‘that every person who takes prescribed medication of this straightforward kind must be treated as in priority need’ and the reviewing officer had been ‘entitled to use her own common sense, and form her own assessment of the probable impact of homelessness on the practical ability’ of TG to take his medication. Although Dr Freedman’s views on this particular issue had not been referred to expressly by the reviewing officer, and ‘it would have been better if she had done so’, to allow the appeal on that ground would ‘run counter to the benevolent approach which must be adopted when interpreting a review decision’.

However, the appeal was allowed on the footing that the reviewing officer had not properly dealt with the evidence in relation to TG’s mental health conditions. Specifically, in relation to Dr Freedman’s evidence, which had been implicitly rejected by the reviewing officer, Henderson LJ concluded at [64]-[65] that:

"This evidence, from a distinguished consultant psychiatrist, and directed to the key legal point in issue, could not in my view be disregarded, and if the review officer was going to depart from it, I think it was necessary for her to provide a rational explanation of why she was doing so. The difficulty which I have is that, even on a benevolent reading, I am unable to find any such rational explanation in the Review Decision. On the contrary, I find it very hard, if not impossible, to trace a coherent line of reasoning in paragraphs 66 to 75 of the Review Decision. Furthermore, in paragraph 75 Ms Ubiam appears to have accepted that "further suicidality in response to various life stressors" was not unlikely, which on the face of it appears to be consistent with Dr Freedman's own prognosis. In the very next sentence, however, Ms Ubiam said she thought there was no current evidence to indicate that Mr Guiste would experience harm or deterioration as a result of homelessness. That appears to amount to a rejection of Dr Freedman's firmly stated opinion to the contrary, but I am unable to find any clear indication why Ms Ubiam took this view, especially as she appeared to accept the likelihood of further suicidality. Instead, the ensuing paragraphs of the Review Decision veer off into generalities and paraphrases of Hotak. If Ms Ubiam was intending to base her conclusion on the views of the two psychiatrists instructed by Now Medical, she needed to explain why their views should prevail over that of Dr Freedman, when they were less highly qualified that she is, and (more importantly) they had never met or interviewed Mr Guiste. Equally, I find it hard to see how Ms Ubiam could rationally have given more weight to the report of the consultation at St George's Hospital in September 2017 than to the more recent and much fuller report of Dr Freedman, which (unlike the earlier report) also focused on the critical question of the effect that homelessness would have on Mr Guiste's mental health.

"In view of these shortcomings, I am driven to the conclusion that the Review Decision simply does not do justice to this crucial part of Mr Guiste's case. The question whether Mr Guiste's mental illness makes him more vulnerable than an ordinary person to the risk of suicide if made homeless is self-evidently a very serious matter, which requires careful consideration of all the relevant evidence and an adequately reasoned conclusion. While I have every sympathy for Ms Ubiam in the difficult task which she had to perform, I have to say that in my judgment the parts of the Review Decision dealing with this critical issue do not meet the requisite standard. Such a failure is in my view properly characterised as an error of law, because there has been a breach of the principles of rationality and fair decision-making."

The court went on to reject an argument put forward on behalf of Lambeth that, when applying the guidance in Hotak v Southwark London Borough Council [2015] UKSC 30, [2016] AC 811 and Panayiotou v Waltham Forest London Borough Council [2017] EWCA Civ 1624, [2018] QB 1232 and considering whether an applicant is vulnerable, ‘there is an additional requirement of "functionality" which needs to be satisfied by an applicant’. I.e. the question for a local housing authority when assessing vulnerability is not whether the particular circumstances of the homeless applicant would affect his or her functionality so as to make a noticeable difference to his or her ability to deal with the consequences of being homeless. See [68]-[70].

The court declined to decide whether or not s31(2A) Senior Courts Act 1989 (which restricts the grant of relief in judicial review cases in cases where it is ‘highly likely’ that the outcome would not have been ‘substantially different’) applied to appeals under s204 Housing Act 1996. It would have been appropriate to grant relief in this case in any event so the point did not arise. However, Henderson LJ expressed the provisional view that ‘there is no proper basis for extending the scope of the new test in section 31(2A), by judicial decision, to statutory housing appeals under section 204 of the 1996 Act’

Click here for the judgment: Guiste v Lambeth LBC [2019] EWCA Civ 1758

Comment
 

Medical evidence
The court describes the decision as having been quashed on grounds of fairness and rationality. But I think it might be better characterised as a failure to give sufficient reasons, which is not quite the same thing. We know from Shala v Birmingham City Council [2007] EWCA Civ 624, [2008] H.L.R. 8 that local authorities are entitled to seek medical advice to help them evaluate medical evidence, but that the final decision rests with the reviewing officer and not with Now Medical (for example) or with the applicant’s Doctor or clinician. What I think this case does is to emphasise the importance of the local housing authority providing reasons before rejecting the applicant’s medical evidence in favour of evidence from Now Medical or the like. The fact that the local housing authority are entitled to reject the applicant’s medical evidence does not, in and of itself, provide a reason to do so. Likewise the fact that the Now Medical conclusions might differ from the conclusions in the applicant’s medical evidence is not, by itself, a sufficient basis to reject the applicant’s medical evidence. The difference in medical opinion simply means there is a conflict in the evidence. It does not help resolve it. Meaning the reviewing officer will need to give (sensible) reasons to show how and why that conflict has been resolved, and those reasons will need to take into account factors such as the relative qualifications of the various Doctors and advisers and the presence or absence of an examination. Or, to put it another way, more weight should be given to the opinion of the more senior Doctor or medical adviser who has assessed the applicant, unless there are particular reasons not to. And the review decision would need to articulate what those reasons are.

The ‘no difference’ test
The court’s views on whether or not s31(2A) Senior Courts Act 1989 applies in s204 Housing Act 1996 appeals builds on a discussion that was started in London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) (see my comments on the point at the bottom of this page) and continued in Forward v Aldwyck Housing Group Limited [2019] EWCA Civ 1334 (my note here). Henderson LJ expressed the provisional view, without deciding the point, that ‘there is no proper basis for extending the scope of the new test in section 31(2A), by judicial decision, to statutory housing appeals under section 204 of the 1996 Act’. Whereas the Court of Appeal in Forward were content that it does apply to a public law defence to a private law possession claim in the county court. The Court of Appeal in this case did not need to decide the point. But my feeling is that Henderson LJ in this case and the Court of Appeal in Forward might both be right. I can see why it might be appropriate to take the s31(2A) approach in public law defences in possession claims. Not because it applies directly. But because it is a sensible analogy for the court to make when exercising its discretion to grant relief: the public law defence to the possession is being used as a substitute for a judicial review and so it makes sense for the county court to make sure that the circumstances in which it grants relief mirror those in which the High Court would. The jurisdiction of the county court to entertain a public law defence to a possession claim is a judicial invention. And if the courts can invent the jurisdiction then they should be able to adapt it. Whereas s204 appeals are statutory appeals (the clue is in the name) and the court has no power to either extend the ambit of s31(2A) or to restrict the scope of the untrammelled statutory power to grant relief under s204(3). To do either would be to read words into the legislation which simply are not there.

The ordinary person
Finally, we have a helpful clarification from the court in this case that the ‘ordinary person’ (the ever elusive comparator) is someone in ‘normal health’. This discussion follows on from Freeman-Roach v Rother District Council [2018] EWCA Civ 368, [2019] PTSR 61 and the train set in motion by Lord Neuberger in Hotak when he quoted a comment to that effect (about the ordinary person being robust and healthy) from Pitchford LJ in the Court of Appeal, but did so in a slightly ambiguous context (he was talking about the relevance of third party support rather than the comparator for assessing vulnerability) which left some of us (or me at least) a little unsure as to the characteristics of the comparator. (See my comments on the comparator at the end of this post.) That confusion has now, hopefully, been resolved once and for all. The comparator is in normal health. That is, the comparison is with a person who does not have ‘any… physical or mental illness, or disability of the type that might render him vulnerable within the meaning of section 189(1)(c)’. See [54]. In the context of judgments on vulnerability, which often leave me with more questions than answers, I think that is clear and helpful.

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