The role and information provided by [independent] medical advisers in helping local housing authorities to determine the issue of vulnerability must be treated carefully.
Most cases of vulnerability involve a medical opinion on the homeless applicant’s problems. In R. v Lambeth LBC Ex p. Carroll (1988) 20 H.L.R. 142, Webster J. said:
‘‘Where the applicant claims to be vulnerable for medical reasons or where on making proper inquiries it is apparent to the authorities that such is his claim, it is both proper and necessary as part of the inquiries which the authorities are under a duty to make to take and consider a medical opinion, unless the applicant’s condition renders him so obviously vulnerable that that is not necessary. It may quite often be the case, I suspect, that the medical opinion is in practice more or less conclusive in the sense that the authority will be able from it to satisfy themselves whether or not the applicant is vulnerable and, if so, whether he is vulnerable for one of the particular reasons specified in [s.189](1)(c). This could particularly be so where the doctor concerned expressly addresses and gives opinions about three separate questions: first, whether the homeless person is in his opinion vulnerable in that he is less able to fend for himself when homeless or in finding and keeping accommodation; secondly, whether or not he is of that opinion, whether the person is suffering from any of the conditions specified in section [s.189]( 1)(c); and, thirdly, if in his opinion the homeless person is vulnerable, whether that vulnerability is caused by such condition or by any other reason.’
The Judge is correct in saying that in principle that if a medical adviser applies the correct test then their opinion is likely to be, for all intents and purposes, conclusive, even if the final decision is technically for the local authority alone.
However, in practise this is not always the case and their opinion is not “more or less conclusive” so that the authority will be able from it to satisfy themselves whether or not the applicant is vulnerable, if the adviser does not apply the correct test. Most Local housing authorities often use medical advisers and we will mention some cases in which opinions given to authorities do not apply the Pereira test correctly.
Bellouti v Wandsworth LBC [2005]
In Bellouti, the appellant suffered from chronic backache, cramps from neck to lower back, Rheumatism in my lower parts of his legs, injured left hand, reduced eyesight in his right eye and depression. By letter dated 18 August 2003, Dr Sultan [B’s GP] wrote: “This gentleman has chronic backache and arthritis. He is unable to lift anything and has been referred to the [Royal National]… His ankles are swollen and painful. He cannot walk more than less than 100 meters…He is finding it difficult to cope with all these things at the present time”.
The Department referred B’s completed assessment form, together with Dr Sultan’s letter, to the Council’s Independent Medical Adviser, Dr John Keen, for his comments who responded by completing a standard form of questionnaire. In answer to the question “Does the applicant’s medical condition restrict/impede him/her from seeking or maintaining his/her own accommodation?”, Dr Keen circled: “No” because “His back problem is not considered significant or severe, nor such as to impede reasonable mobility. There are no other relevant medical issues.”
In answer to the question “Is the applicant able to live in independent accommodation?”, Dr Keen circled “Yes”, adding: “No housing recommendation”.
Dr Rose Riley, a chartered psychologist practising at the same address as Dr Sultan, referred B for psychological counselling regarding symptoms of depression which he was experiencing. The report included B “scored 30 in the Beck Depression Inventory and falls into the range of severe depression (range 29-63). B reports that he has suicidal thoughts but he denied any plans to carry out such an action and the risk of harm to others seems remote.
It appears that his housing problems have added to his depression, he is unable to sleep and finds concentrating difficult and if more suitable accommodation was available his mental health and his physical health would improve considerably.
This report was referred to Dr Keen for his comments who responded as follows: “His depression is being treated at low level and is not such as to materially impede reasonable function. No housing recommendations.”
In rejecting the appeal against the local authority’s subsequent finding that the appellant was not vulnerable, the County Court Judge said that the authority’s reviews manager ‘‘was clearly entitled to take into account Dr Keen’s assessment of Mr Bellouti’s mental and physical condition, whatever the actual question which drew his answers’’.
The Court of Appeal did not comment directly on the test applied by Dr Keen but, in rejecting the appeal, stated that the authority’s reviews manager had applied the correct Pereira test.
Brown v Wandsworth LBC [2005]
B had a range of medical problems including sciatica, asthma, psoriasis, high blood pressure, obesity, liver dysfunction, narcolepsy and rhinitis. Dr Keen of NowMedical stated that none of these issues, ‘‘either taken singularly or as whole, are such as significantly to impede his reasonable function’’. The local authority’s reviews manager (the same one as in Bellouti) decided that B was not vulnerable but the County Court Judge held that this was irrational and varied the decision to say he was vulnerable. The Court of Appeal refused the authority permission to appeal. Both the County Court Judge and the Court of Appeal based their judgments on the authority’s errors, not on what Dr Keen had said.
Richardson v Birmingham City Council [2005]
R’s own medical advisers said he needed to use a particular machine as a result of his diabetic condition. The authority obtained a NowMedical report which said it was not necessary and refused to provide accommodation pending an appeal against their finding that the appellant was not vulnerable. The County Court Judge said that the NowMedical report should be treated with caution and ordered the authority to provide accommodation pending the substantive appeal.
Khelassi v Brent LBC [2006]
K’s medical adviser, Dr Steadman, said there was a current serious risk or a real and substantial risk of the appellant committing suicide. He stated K: “presents with psychological difficulties currently which in my view amount to difficulties with anxiety. He is in my view substantially depressed. Also he presents with difficulties which in my opinion would be consistent with being a current partial syndrome of post traumatic stress disorder… This gentleman describes frequent suicidal thoughts and in my view there is a real and substantial risk of him killing himself (I have assessed the risk of suicide in many thousands of patients). It is my view that he urgently requires to be under the care of a local community mental health team who could provide him with psychological support and further treatment… It is my view that his psychological difficulties would distinctly hinder him [in] any attempt to seek out accommodation including his lack of concentration, lack of self confidence and lack of motivation… It is my view that were this gentleman to be homeless then there would be a substantial risk of his psychological state worsening even further and I would like to say that I would have grave concerns about this”.
In his report Dr Keen said that it was clear that K suffered from reactive depression, i.e. depression in reaction to circumstances or life events, in this case his separation from his wife. Having then referred to five particular features of the case, Dr Keen continued: “All of the above leads me to conclude that his condition is not substantial, nor such as to impede reasonable function and activity, and being mindful of Pereira as always [my emphasis], I make no recommendation for housing on this basis… I note in detail Dr Steadman’s report which is a one-off ‘snapshot’ produced for legal purposes; he is not actively involved in treating this case. However, it is clear from the report that he does not consider any mental illness to be severe in nature and broadly supports my view above.”
Having considered Dr Steadman’s report and the other circumstances of the case Dr Keen concluded: “In summary, I do not believe that any depression is such as to significantly impede the applicant’s normal and reasonable function, nor will materially hinder his ability to cope as a homeless person, and I do not consider that there is a significant risk to his health by homelessness.”
In commenting on Dr Keen’s report, Judge Richardson said: “Dr Keen made no reference to suicide or suicide risk. He was not a psychiatrist. I detect in his medical advice in October 2003 a tendency to be dismissive of Dr Steadman’s report on the basis that Dr Steadman repeatedly reported in such cases. Be that as it may, on the key question of vulnerability there is a gulf fixed between what Dr Keen was saying and what Dr Steadman was saying. The two positions are not reconcilable.”
Relying on Dr Keen’s opinion, the local authority found the appellant to be not vulnerable. The County Court Judge quashed this decision. In refusing the authority permission to appeal, the Court of Appeal commented that Dr Keen was of the view that Dr Steadman’s reports broadly supported his own view but that they found it difficult to see how that could have been said.
Shala v Birmingham City Council [2007]
In Shala, Dr Keen stated, in respect of a Kosovan refugee with depression and post-traumatic stress disorder: ‘‘her condition is currently being treated and there remains nothing to suggest her condition [is] of particular severity, nor that it has been in the past and nor that impairs her ability to function or significantly impedes her daily activities.’’
Surprisingly, the authority’s review officer claimed in the decision letter that S’s medical advisers had not applied the correct test, even though they used the words of the Pereira test, but did not purport to apply the same analysis to Dr Keen’s report. In any event, the Court of Appeal stated: ‘‘Dr Keen did not attempt to formulate his advice in the language of the Act or the cases decided under it.’’
More importantly, Sedley L.J. stated: ‘‘those who rely on [Dr Keen’s] opinions need to bear in mind that, notwithstanding [his] wide experience in general practice, he is not a qualified psychiatrist’’, and ‘‘[T]he limited extent and character of [Dr Keen’s] expertise has to be borne in mind by those using his services 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’’.
‘‘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. 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.’’
Conclusion
It is not for the medical adviser, but the local housing authority who have the duty of deciding whether the statutory tests of priority need are met. The local housing authority officers, 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. However, it is not acceptable to seek out advisers to support a refusal of priority need housing wherever possible, and should not merely rubber stamp the medical advisers finding, especially if the medical adviser does not address the Pereira test correctly, or at all.
Further reading
Bellouti v Wandsworth LBC [2005] EWCA Civ 602
Brown v Wandsworth LBC [2005] EWCA Civ 907.
Richardson v Birmingham City Council [2005] Legal Action, November 2005, p.38