Hall v London Borough of Wandsworth

These two appeals from the Wandsworth County Court raise similar issues relating to the review of decisions as to “priority need”, under the homeless persons legislation. Priority need is important in determining the extent of the duties imposed by the Housing Act 1996 for the benefit of those found to be homeless. Section 189 defines certain categories of priority need. These cases are concerned with section 189(1)(c):

"A person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason."

In this case we are concerned with applicants claimed to be “vulnerable as a result of mental illness”. Guidance on the meaning of this phrase was given by this court in R v Camden London Borough Council ex parte Pereira [1998] 31 HLR 317, 330. Hobhouse LJ said:

"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."

It is important to note the background to Pereira. The court had to consider dicta in earlier cases, to the effect that an applicant had to overcome two hurdles-

“First, he (or she) must show that to some material extent he or she is less able to obtain suitable accommodation than the ordinary person and secondly, that if he fails to obtain it, then he will suffer more than most.” (p323 quoting from Ortiz v Westminster LBC (1993) 27 HLR 264)

In Pereira this dual test was expressly disapproved. The applicant in that case had a history of drug-abuse, and there was evidence that being homeless placed him under psychological stress which adversely affected his efforts at rehabilitation (p 326). But the assessment officer considered that he was not disadvantaged in his ability to search for accommodation, and (following the Ortiz) approach treated this factor as decisive (p 328). This was held to be an error of law. As Hobhouse LJ said, inability to obtain housing may be an aspect of vulnerability, but the critical issue is risk of injury or detriment (p 330).

The grounds on which Mr Hall was given permission to appeal by Mance LJ related to the Council’s treatment of the medical evidence. The principal complaint was that the reviewing officer had failed to allow him an opportunity to respond to the points raised by the council’s independent medical adviser. This was linked to a complaint that he should have found a “deficiency or irregularity” in the earlier decision, triggering the obligation to give advance notice of his intended decision under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (“the regulation 8(2) issue”). On the latter ground, Mance LJ did not give permission, but adjourned the application to this court. In the event, that issue has become the central issue in the appeal.

Mrs Carter was given permission by Rix LJ to enable the two to be heard together, because it raised similar issues. However, there is an additional point in her case, relating to the County Court’s treatment of evidence submitted by the Council to supplement the reasons in the decision letter.

I will first set out the relevant facts in each case.

This was a decision of HH Judge Collins CBE given on 19^th November 2003. He described the background:

“Mr Hall is 39 years old. His history shows that he has had many problems in his life of a medical and social nature….He has also had a period in prison to which he reacted very badly, having at least one psychotic episode while in prison. The present proceedings arise because Mr Hall was a tenant of local authority accommodation together with his partner. When his partner left he ceased to be entitled to that accommodation. A possession action was issued and Mr Hall left those premises,… and in those circumstances the local authority readily accepted at the outset that he was homeless for the purposes of the Act.”

In March 2003 Mr Hall applied to the Council as a homeless person. The original decision, which was notified by letter dated 5^th June, stated:

"The council is satisfied that you are not in priority need of housing. On available medical information it is considered that you are not so disadvantaged, either medically or socially, that you would be unable to secure or maintain your own accommodation in circumstances where a more vulnerable person would suffer harmful effects."

At the time of making that decision, the responsible officer had before him, among other information, a letter dated 28th May, from the Mr Hall’s general practitioner, Dr Aitken, which said:

"Over the years he has presented with episodes of reactive depression that have been managed here at the GP's surgery without necessitating a referral to our over-stretched local community mental health team. He is able to live independently. My only concern is that any bed and breakfast placement be close enough within Lambeth so that he can continue to access GP services at this practice."

The letter also included a brief summary of his medical history. That letter had been referred to the council’s Independent Medical Adviser, Dr Keen. The reference was on the council’s standard form, which included the question:

“Does the applicant’s medical condition restrict/impede him from seeking or maintaining his/her own accommodation?”

Dr Keen replied:

“Any mental illness not considered significant or severe. No housing recommendation.”

Mr Hall sought a review of that decision under section 202 of the 1996 Act. A letter on his behalf dated 9^th June 2003 from Threshold Housing Advice complained of lack of detailed reasons, and failure to make inquiries about the effect of his lengthy periods in prison. They indicated that they would be requesting the housing file, and would be making further representations supported by medical information. The Council was requested to provide interim accommodation pending the review. On 11^th June, Mr Adelaja, the reviewing officer, refused that request with reasons. He invited the solicitors to submit further written representations “supported by medical evidence if required” not later than 20^th June, after which a decision would be made on the review. On 3^rd July, Mr Adelaja confirmed his refusal of interim accommodation, noting that Mr Hall had been able to “fend for himself and make his own housing arrangements” in the interim period since 2001.

On 3^rd July the solicitors supplied a new report from Dr Aitken, which they said:

“… confirms that Mr Hall has a history of serious mental illness and that if his depression becomes worse he may require sectioning and that he would suffer detriment.”

The report was written in response to a letter from Flack & Co to Dr Aitken, drawing attention to the test in the Code of Guidance. They asked her to address four specific questions, covering Mr Hall’s physical and mental condition, and the prospects of deterioration if he were made homeless, and concluding:

“If possible, please confirm whether you consider Mr Hall is likely to suffer injury or detriment if homeless due to his physical or mental health difficulties. I am aware that you previously advised Wandsworth of his suffering from reactive depression but you must expand upon what the symptoms are as requested above. Please comment on what the injury or detriment would be and whether you consider a less vulnerable person would be able to cope without harmful effects.”

Dr Aitken’s second report summarised Mr Hall’s medical history, covering both physical and mental health, from the medical records held by her practice. One item read:

“1999 reactive psychosis, whilst in custody, those records with prison medical service.”

The most recent item was February 2003:

“reactive depression, heavy drinking again. Again declined formal help for low mood as felt it was caused by current circumstances.”

The report continued:

“Clearly Mr Hall has a history of serious mental illness and my concern is that if his depression worsens he may develop another episode of acute psychosis. He does not have a good track record of accepting help for his mental health, and so it is likely that he may require sectioning at some stage. He is also at risk of developing further alcohol dependence, therefore in such circumstances he would not be able to fend for himself and would certainly suffer detriment.”

That report led to a change of heart on the council’s side. In a letter of 4^th July, the reviewing officer, Mr Adelaja, accepted the evidence as showing “prima facie priority need”, and he agreed to provide interim accommodation pending his review decision. Flack & Co responded on the same day that they proposed to provide further representations, once they had received the homeless persons file “including all medical reports by the Council’s medical adviser”.

The report was referred to Dr Keen, with a note:

“Please consider medical report, particularly comment of serious mental health illness, and recommend if able to fend for himself.”

Dr Keen responded on 8^th July:

“His previous mental illness is noted which led to breakdown in 1985 and 1999. However of late his depression is considered of much less severity and he has declined any treatment. It is no longer considered psychotic in nature, nor such as to impede normal activity and function. His non-insulin diabetes is controlled on minimum treatment only and turns out no secondary medical complications. No housing recommendations. There is nothing to materially hinder his ability to cope as a homeless person.”

The review decision was issued by Mr Adelaja on 9^th July, without further reference to Mr Hall or his solicitors. They had not by then seen the file, nor were they shown either of Dr Keen’s opinions.

In a long and carefully drafted letter, Mr Adelaja said that he had had full regard to all the medical and other information. He did not in terms consider whether there had been a “deficiency or irregularity” in the earlier decision but he said:

“I am satisfied to uphold the earlier decision. This is because I agree that you do not, on present information and at this time, have a priority need for accommodation as a vulnerable person within the meaning of the legislation.”

He said that, because the decision was “against your interests”, he would explain the reasoning in some detail, which he then did. In particular, he summarised the effect of Dr Aitken’s report, and said that “because of the nature of your medical history”, he had had to seek advice from the council’s independent medical adviser. Having summarised the advice, he commented:

"In the council's opinion you are capable of independent living, managing your own accommodation and hygiene as well as living and coping independently."

He noted that Mr Hall appeared to have been able to seek legal advice and make his own housing arrangements in the last few months, which suggested that he was “orientated in time, space and person”; that the interview notes showed that he had adequate command of English to express himself clearly on daily matters; that he had coped well in managing his affairs in the past; and that he appeared to have an entitlement to housing benefit, which might be needed to meet the cost of housing in the private sector. He concluded:

“I am satisfied that your history of mental health problems, and non-insulin dependent diabetes are not so serious as to render you vulnerable on the basis of physical or mental disability. Whilst I acknowledge that you may have some medical problems I am not satisfied that this is sufficiently serious as to render you at risk of injury or detriment when homeless.”

On 19^th November 2003, Judge Collins dismissed Mr Hall’s appeal. I shall return to his judgment.

On 20^th February 2003 Mrs Carter applied to the Council for housing assistance. Subsequently, Dr Natalie Jeffcote, Mrs Carter’s former GP, provided a medical report. She referred to the difficulties Mrs Carter was having in her present temporary accommodation, caused by loss of sleep due to noise from other residents, leading to lack of energy and prolonged headaches. The doctor had prescribed sedatives, which she would consider increasing “to anti-depressant levels” if the situation did not improve within two weeks. She concluded:

“In her past medical history she has petit mal epilepsy controlled on Epilim. She is also on HRT.

I feel that Mrs Carter’s present accommodation is actually making her ill and I am fairly sure that she is going to become clinically depressed should she continue at the Elena Hotel.”

On the basis of that report Dr Keen advised the Council on 13^th May (in response to their standard form questions – see above):

“The petit mal-type epilepsy is noted but is not significant and is unrelated to housing. No other significant medical issues. No housing recommendations.”

That advice was re-confirmed on 31^st July. On 8^th August the council gave notification of its decision that she was eligible for assistance and homeless, but did not have a priority need. The letter referred to the main points in the medical reports, and set out correctly the Pereira test. It concluded:

“As to your medical problems, taking into account the medical information available to me, and this having been assessed by the Council’s Independent Medical Adviser, I am not persuaded that you, when homeless, are any less able to fend for yourself than the ordinary homeless person. I am satisfied that it cannot be so serious as to expose to any greater risk of injury or detriment than the ordinary homeless person.”

On 14^th August Mrs Carter asked the council to review the decision. On 4^th September her solicitors (again Flack & Co) sent the council a medical report of Dr I O Bolade, her present general practitioner. He referred to her medical history, including gynaecological operations in 1998, and epilepsy over many years. He mentioned her “depression (low mood)”, for which a sedative was recently prescribed by Dr Jeffcote, and also the fact that in June 2003 she had just come out of hospital after an abdominal operation. He continued:

“Subsequent visits to this practice showed that she was clinically very depressed and agitated, for which I started her on Prozac and Valium. Mrs Carter’s medications include Amitriptyline 25mgs one to two at night, Epilim 400 mgs in the morning and 200 mgs at night, Priman, a form of HRT, Co-dydramol, a form of analgesic painkiller, Fibrogel, and Prozac.

From all the aforementioned it is undoubtedly clear that Mrs Carter is a very vulnerable person and evicting her from her current accommodation would only worsen her clinical state of mind and body. The Council could actually do well in helping to improve her housing condition, i.e. by providing her with better accommodation, which would be stress free or near stress free for the patient.”

On 9^th September Flack & Co wrote a detailed letter setting out Mrs Carter’s case for review.

On the same day Dr Keen responded to the council’s request to advise on the implications of Dr Bolade’s report. Under “depression”, he said that this had been:

“treated at low level throughout with single minor anti-depressant drugs (prozac or dothiepin), has not necessitated psychiatric referral and is not considered significant or severe”

He said that the 1998 surgery “is no longer of relevance”. He concluded:

“There is nothing to impede reasonable functions nor any risk of harm from homelessness and I continue to make no housing recommendations.”

On 8^th October Mr Adelaja, the review officer, notified Mrs Carter of the review decision, upholding the original decision. The letter followed a similar pattern to the Hall letter. Although there was no specific reference to the issue of “deficiency or irregularity”, he said that he was “satisfied to uphold the earlier decision”, as he agreed that she did not have a priority need and he proposed to explain his reasons in detail because it “is against your interests”. I will need to set out his treatment of the medical issues at some length, since the reasoning is under challenge. He noted that Mrs Carter’s application, in response to the question whether she suffered any illness which might affect her housing, had said simply “minor stroke, epilepsy”. He continued:

“You completed a medical assessment form on 20/2/03, the contents of which along with the letters from your GP (Dr Jeffcote), Dr Bolade and St. George’s Hospital were referred to an independent Medical Adviser for a recommendation. These letters confirm that you suffered facial abscesses, epilepsy, and chest pains (undiagnosed) a minor stroke and are currently investigation for stomach problems by St. George’s hospital. Your representatives claim you were never questioned about your mental health conditions, however as neither you nor you GP made any reference to any severe or significant mental health problems I can find no irrationality in the decision by your caseworker not to make specific enquiries to this effect. I have however considered the fact that you were treated with a low dose of Dothiepin (sedative). I also note that though Dr Jeffcote was considering prescribing anti-depressants in May 2003, Dr Bolade does (not)* confirm that such medication has been prescribed in his letter of 2/9/03. I note that you have not been referred to the Community Mental Health team, as you do not seem to suffer from any mental health problems of a psychotic nature. It would seem your gynaecological surgery was conducted in 1998 and though you received treatment for your facial abscesses in June 2003, you do not suffer from an illness such as to impede reasonable mobility or function. There is also no further information to suggest deterioration in your petit Mal-epilepsy and the condition continues to be controlled by medication, which does not suggest any severity. You would also seem to be quite mobile as noted by officers of this Council during interview sessions.

In Dr Bolade’s letter he states ‘it is undoubtedly clear that Ms. Carter is a very vulnerable person’. Your representatives further confirm that you are in receipt of Incapacity benefit.

Vulnerability for the purpose of this application is a matter of law and governed by the test case mentioned above. It is not a matter of your GP’s opinion or based on the assessments made by the Social Security Service. However due regard has been given to this opinion in consideration of your ability to fend for yourself.”

[* In his County Court statement, Mr Adelaja said that the word “not” should have been omitted – see below.]

He considered the claim that her solicitors had not been able to respond to the Council’s findings on the health problems, but noted that they had had “full sight of the entire housing file” and were therefore fully aware of the findings”. He continued:

“The letter from Dr Bolade… is fully comprehensive and provides a good profile of your medical history and functional abilities, without further enquiries being made.

All information available to me would suggest that you are capable of independent living, managing your own accommodation and hygiene as well as living and coping independently.

I also note that you have coped very well in managing your own affairs and are in receipt of Incapacity Benefit.

I am satisfied that you do not suffer from any illness that could render you vulnerable on the basis of mental or physical disability.”

Mrs Carter appealed against that decision to the County Court. The appeal was dismissed by H H Judge Walker on 29^th January 2004.

Before turning to the arguments in the two appeals, it will be helpful to set article 8(2) in its context as part of the review procedure. This was a new procedure introduced by the 1996 Act, and applied to decisions on homelessness (sections 202-3) and also to decisions on the housing register (sections 164-5). In the present context the scheme of the Act and the regulations was authoritatively explained by Lord Bingham in Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 para 9(3):

“Although… the reviewer is not independent of the authority which employs him or her, section 203 of the 1996 Act and the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (S1 1999/71) do provide safeguards that the review will be fairly conducted. Thus the reviewer must be senior to the original decision-maker (section 203(2)(a), regulation 2), plainly to avoid the risk that a subordinate may feel under pressure to rubber-stamp the decision of a superior. The reviewer must not have been involved in making the original decision (section 203(2)(a), regulation 2), to try to ensure that the problem is addressed with a genuinely open mind. The applicant has a right to make representations, and must be told of that right (regulation 6(2)). Such representations must be considered (regulation 8(1)). The applicant is entitled to be represented (regulation 6(2)). If the reviewer finds a deficiency or irregularity in the original decision, or in the manner in which it was made, but is nonetheless inclined to make a decision adverse to the applicant, the applicant must be informed and given an opportunity to make representations (regulation 8(2)). The reviewer must give reasons for a decision adverse to the applicant (section 203(4)). The applicant must be told of his right to appeal to the county court on a point of law (section 203(5)). These rules do not establish the reviewer as an independent and impartial tribunal, but they preclude unreasoned decision-making by an unknown and unaccountable bureaucrat whom the applicant never has a chance to seek to influence, and any significant departure from these procedural rules prejudicial to the applicant would afford a ground of appeal. ”

As that summary makes clear, the role of the reviewer remains that of an administrator, not an independent tribunal. Regulation 8(2) of the 1999 Regulations is an important part of the mechanisms designed to ensure the fairness of the overall procedure, although it seems to have received surprisingly little attention in the numerous reported cases on this legislation. It provides:

“(2)

If the reviewer considers that there is deficiency or irregularity in the original decision or in the manner in which it was made but is minded nevertheless to make a decision which is against the interests of the applicant on one or more issues the reviewer shall notify the applicant:

(a)

that the reviewer is so minded, and the reasons why; and

(b)

that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.” (emphasis added)

The statutory source of the Regulations is section 203(1), (2)(b) of the 1996 Act, under which the Secretary of State may make regulations governing the review procedure, and in particular–

“…. as to the circumstances in which the applicant is entitled to an oral hearing…”

Thus, the requirement for advance notice of the intended decision in certain cases does not derive directly from the statute itself. The thinking behind such a requirement seems to be that a bare right to make representations on the first decision will not be sufficient, if that decision was itself flawed in some respect, so that it does not represent a full and reliable consideration of the material issues. In that event the applicant’s rights are reinforced in two ways: first, by requiring the reviewing officer to give advance notice of a proposed adverse decision and the reasons for it; and, secondly, by allowing the applicant to make both written and oral representations on it.

The current regulations replaced the original 1996 Regulations. The only significant change was that (in the italicised passage) the 1996 regulation referred simply to an “irregularity”, rather than a “deficiency or irregularity” as in the 1999 version. There appears to have been no published explanation for the change. We were not referred to any parallel for this formula in other statutes. The most likely inference is that it was intended to reinforce the contrast in the regulation between a defect in the decision itself, and one in “the manner in which it was made”; in other words, between the substance of the decision, and the procedure. The word “irregularity” may have been seen as more apt to describe the latter; and the word “deficiency” added to make clear that the trigger might also be a substantive defect in the decision itself, such as an error of law or a failure to take some material factor into account.

The Secretary of State’s Code of Guidance (para 13.11) suggests as possible examples the typical judicial review grounds, such as failure to take account of relevant considerations, bad faith, mistake of law, and Wednesbury unreasonableness. I agree with Judge Collins that a deficiency of reasoning would also be included; as he said -

“… an original decision would be deficient if it failed to communicate to the applicant with sufficient clarity the essential basis on which his application was being rejected”.

However, I would put it more broadly. The word “deficiency” does not have any particular legal connotation. It simply means “something lacking”. There is nothing in the words of the rule to limit it to failings which would give grounds for legal challenge. If that were the intention, one would have expected it to have been stated expressly. Furthermore, since the judgment is that of the reviewing officer, who is unlikely to be a lawyer, it would be surprising if the criterion were one depending solely on legal judgment. On the other hand, the “something lacking” must be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard. Whether that is so involves an exercise of “evaluative judgment” (see Begum above, at p 466B, per Lord Walker), on which the officer’s conclusion will only be challengeable on Wednesbury grounds.

To summarise, the reviewing officer should treat regulation 8(2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker. In such a case, if he intends to confirm the decision, he must give notice of the grounds on which he intends to do so, and provide an opportunity for written and (if requested) oral representations.

Applying that approach to the present cases, one faces the immediate difficulty that Mr Adelaja did not refer in terms to regulation 8(2) in either case. In fairness to him, neither did the applicants’ solicitors. However, that could not relieve the reviewing officer of a duty which the regulation placed on him. It may be that he had it in mind when saying that he was “satisfied to uphold the earlier decision”, and there is a hint of the language of the regulation in his reference to the decision being “against your interests”. But, if so, the reason given – that “you do not, on present information and at this time, have a priority need…” – would not have been sufficient. Regulation 8(2) presupposes that the review decision is going to be adverse to the claimant; the “deficiency” of the first decision is a separate issue. Towards the end of each letter there is what appears to be a standard sentence, to the effect that he has found “no irregularity in the decision-making process”. If intended as a reference to regulation 8(2), this is incomplete because it ignores the reference to “deficiency”. It is necessary therefore to consider the letters as a whole to see whether, although the issue was not expressly addressed, the answer to it can properly be inferred.

Against that background I turn to consider the merits of the arguments in each of the cases.

Mr Manning submits that the first decision was “deficient”, not only because it contained no real discussion of the issues, but because it posed the wrong question. The sole reason given was that he was not -

“… so disadvantaged, either medically or socially, that you would be unable to secure or maintain your own accommodation in circumstances where a more vulnerable person would suffer harmful effects.”

Under the Pereira test, he says, the question is not whether the Appellant is less vulnerable than a more vulnerable person, but whether the Appellant is more vulnerable than an ordinary person. Further, the Pereira test is not about whether the Appellant could secure or maintain his own accommodation; it is about whether he would suffer injury or detriment while homeless. Accordingly, regulation 8(2) should have been treated as applying, and Mr Hall should have been given advance notice of the proposed review decision and the reasons for it. Had that happened, he would have been able to make representations, in particular to question the medical adviser’s comments, and to rebut the suggestion that for two years he had “coped very well in managing his own affairs”.

The judge rejected this submission. Although “clumsily expressed”, the letter made clear what was “the essential basis” for rejecting the application. In any event, the reviewing officer had achieved the purpose of the regulation by his letter of 11^th June, which “made it perfectly plain what his approach was and invited representations”. In this court, on the permission application, Mance LJ agreed that the original letter was adequate. As he said:

“This was not a situation calling for elaborate reasons… The medical evidence at this stage, consisting in substance of the applicant’s own GP’s report, was in reality all one way. It is difficult to see how the council could have come to any other decision other than the one it reached…”

Since he was granting permission on other grounds, he adjourned this point to the full court.

The more detailed argument in this court leads me respectfully to differ from those views. I would not have been troubled if the only issue was the rather “clumsy” re-wording of the Pereira test. However, I think it goes further than that. The problem with the wording is that it leaves it at best uncertain whether the council addressed the correct test, which, as Mr Manning says, is not ability to secure accommodation, but risk of harm. That uncertainty is not assisted by reference to the medical evidence available at that time. Dr Aitken’s letter referred to his “episodes of reactive depression”, but said nothing about the effects of homelessness on that condition. (The doctor seems to have assumed that he would be getting a placement of some kind.) Although Dr Keen said that any mental illness was not “significant or severe”, this was in response to the standard question whether his condition would impede him from seeking accommodation, not whether he would suffer harm from homelessness.

In my view, the lack of clarity in the decision on this point was a “deficiency” in the sense I have explained, and should have led to the application of regulation 8(2).

The judge considered that, even if regulation 8(2) was engaged, it was in substance complied with by Mr Adelaja’s letter of 11^th June, which gave a clear indication of his thinking at that stage, and an opportunity to make representations on it. However, that ignores the developments after that date. Dr Aitken’s second report led to a significant change in Mr Adelaja’s thinking. As he recognised (in his letter of 4^th July), that report raised a prima facie case of priority need, because, unlike the first report (and after prompting from the solicitors) it addressed the correct question: that is, what was the risk of detriment if Mr Hall was made homeless. For that reason, Mr Adelaja thought it “necessary” (as he said in this letter of 9^th July) to seek Dr Keen’s advice on it.

Dr Keen’s comments on that letter formed an important part of the reasoning in the decision-letter. To comply with regulation 8(2) it would have been necessary for the substance of that reasoning to be disclosed in advance, so that Mr Hall and his advisers could comment on it. Instead, the first notice they had of Mr Adelaja’s views on that issue, as advised by Dr Keen, was when they saw the review letter. They had no opportunity to make representations in response.

Accordingly, I would uphold the first ground of appeal under regulation 8(2).

In view of my conclusion under the first head, I can deal with the other grounds relatively shortly. Mr Manning submits that the council was under a general duty to act fairly. Accordingly, he says this required them to give Mr Hall an opportunity to comment on new points of significance. I accept that there may be circumstances where it is necessary to have recourse to general principles of fairness to supplement the statutory rules (see e.g. Robinson v Brent LBC (1998) 31 HLR 1015), but it is unnecessary to do so in this case.

Mr Manning also challenges the council’s treatment of Dr Aitken’s second report:

“… merely referring the medical evidence supplied by the Appellant to an adviser with no psychiatric training, who carried out no further enquiries, did not even obtain the Appellant’s medical records from the Prison Medical Service, did not see the Appellant, and then gave his own opinion on the Appellant’s state of mental health cannot amount to the carrying out of proper enquiries.”

The judge was not impressed by the substance of Dr Aitken’s report, and he regarded Dr Keen’s response as -

“… not offering any new medical material, simply offering a common sense comment on the medical information which had been presented by those who were exclusively in a position to have it.”

With respect, I would not regard Dr Keen’s evidence as merely “common sense comment”. The council had gone to him for expert advice on Dr Aitken’s report, and that is what I understand him to have given. However, that does not give rise to any valid ground of appeal. It was open to Dr Keen to advise, if he thought necessary, that further enquiries or specialist advice was required. He did not do so. I see no reason why in law the reviewing officer was required to go behind his advice.

Finally, it must be remembered that the council is not a court. Its primary task is that of investigation, and for that purpose it is clearly entitled to seek expert advice to assist it in the process of assessment. If that advice raises new issues or contentious points on which the claimant has not been able to comment, then no doubt he should normally be given a chance to do so, in the interest of fairness. But, if the advice is merely directed to helping the council to assess the weight to be given to evidence on matters which are already fully in play, then I do not think there is an automatic obligation to disclose it in advance. If there were such a duty, there would be a danger that the process of exchange and counter-exchange would go on indefinitely.

In this case, there are four grounds of appeal:

This arose as a response to one of the grounds of appeal in the County Court. It was alleged that the reviewing officer had “failed to have regard to relevant considerations” arising from Dr Bolade’s report, in particular his opinion that she was “clinically very depressed” and that her health would deteriorate if she were to become homeless. In response, there was a witness statement by Mr Adelaja, dated 16^th January 2004. He confirmed that he had given consideration to these aspects of Dr Bolade’s report. He explained that there had been a “typing error” in the letter (see the annotated sentence in the passage cited above). He concluded:

“I confirm that when making my decision I considered the assertions that the Claimant was clinically depressed and that her health could deteriorate. However I held these elements not to be sufficient to render the Claimant vulnerable.”

The judge reminded himself of the guidance given by this court as to the care needed in considering new evidence to supplement a formal decision letter in such cases (see especially R v Westminster City Council ex p Ermakov [1996] 2 All ER 302; Hijazi v Kensington & Chelsea RLBC [2003] HLR 72). He noted that Mr Carter conceded that most of the paragraphs of the statement were admissible, but objected to the concluding paragraph –

“… as going beyond mere elucidation and amounting to reasons wholly different from the stated reasons in the review decision of 8^th October”.

However, the judge agreed with the council that, once the preceding four paragraphs were admitted, the last fifth paragraph was “little more than a summary of the effect of those earlier paragraphs”. Accordingly, he accepted the whole statement as “validly and genuinely elucidating the content of the review decision…”. Having reached this view the judge treated it as providing the answer to the allegations that Dr Bolade’s views on Mrs Carter’s depression had not been taken into account:

“In my judgment this proposition of failure to consider these observations by Dr Bolade is largely undermined by the witness statements of Mr Adelaja, particularly when taken in conjunction with the review decision. It is clear that Mr Adelaja did take account of Dr Bolade’s opinion, but of course he also had the advantage of reports from Dr Keen, which did not support Dr Bolade’s opinion. I am satisfied that Mr Adelaja did apply the Pereira test, did take account of the letter of Dr Bolade, and cannot be said to have misdirected himself here.”

Mr Carter submits that the judge was wrong to admit the last paragraph of the statement, because it went further than an elucidation, and amounted to a wholly new reason which was absent from the decision letter. Furthermore, the issue was not whether Mr Adelaja had read Dr Bolade’s report, but whether he had lawfully considered it. Even with the statement, there was no explanation of the basis on which he had differed from Dr Bolade on the severity of Mrs Carter’s depression and the likely deterioration in her health.

I see no objection in principle to the admissibility of the evidence within the Ermakov guidelines. It is not like the decision of a committee. Mr Adelaja was solely responsible for the decision. He was clearly competent to say what matters he did or did not take into account, an issue having been raised, and his truthfulness was not challenged. The real issue, however, is whether the letter and his statement, taken together, provide an adequate explanation of his conclusions on this aspect, so as to show that the relevant issues have been lawfully considered.

The original letter referred to Dr Bolade’s view that Mrs Carter was “a very vulnerable person”. I have no difficulty in accepting that this reference was intended to include Dr Bolade’s opinion on her depression and the likelihood of deterioration. However, the reasons for differing from that view are far from clear. It is true, as the letter said, that the issue did not solely depend on the GP’s opinion, and that it had to be considered by reference to the Pereira test. However, medical judgment as to the seriousness of the condition, and the likelihood of deterioration, was an important aspect of that test, when considering potential detriment. No substantive reason was given, in the letter or the statement, for rejecting Dr Bolade’s view.

Although earlier in the letter reference was made to the independent medical adviser’s opinion, it was not relied on as a ground for differing from Dr Bolade’s view on this aspect. On the contrary, after referring to Dr Bolade’s view of her vulnerability, Mr Adelaja goes on to describe his letter as “fully comprehensive… without further enquiries being made”. There is no explanation of how, in the light of that medical view, and without relying on the independent adviser, he felt able to jump to the conclusion that she was not vulnerable. I should add, although this was not a point relied on by Mr Carter, that the “typing error” mentioned by Mr Adelaja does nothing to help the clarity of the letter. In its uncorrected form, the sentence read:

“…though Dr Jeffcote was considering prescribing anti-depressants, Dr Bolade does not confirm that such medication has been prescribed…”

If accurate, this would have made sense as a reason for discounting the seriousness of the condition. As corrected it read:

“…though Dr Jeffcote was considering prescribing anti-depressants, Dr Bolade does… confirm that such medication has been prescribed.”

In that form, if anything it reinforces Mrs Carter’s case, and the sense of the word “though” escapes me.

Having reached that view, it is again unnecessary for me to consider the other grounds in any detail. For completeness, I should mention the argument under Regulation 8(2), which played a less prominent role in this case. Mr Carter submitted that the first decision should have been treated as “deficient” under Regulation 8(2):

“… the decision-maker… failed to give any reasons whatsoever for his decision that the Appellant was not vulnerable due to her medical reasons. In particular, he did not explain why he had decided that the Appellant did not have a priority need; rather, having set out the statutory provision (as construed in Pereira), he drew an unreasoned conclusion. This was a deficiency or irregularity because it was unlawful for lack of reasons.”

The judge rejected these submissions. The matter was one for Mr Adelaja, and his conclusion that there was no deficiency was not unreasonable. Nor did he accept that the reasoning of the first decision was inadequate. Although Mr Adelaja’s decision covered “a wider swathe of material” than the original decision, that was not unusual and did not in itself mean that the original decision was deficient. He added that Mrs Carter’s solicitors had been afforded “every reasonable opportunity” to make representations.

In this case I would have been inclined to uphold the judge’s conclusion. Although the reasons in the first letter were short, they applied the correct legal test and made clear the council’s views on the essential issues as they then appeared. Mr Adelaja specifically considered the suggestion that there had been inadequate inquiries, and rejected it on grounds which appear reasonable. He said:

“Your representatives claim you were never questioned about your mental health conditions, however as neither you nor your GP made any reference to any severe or significant mental health problems I can find no irrationality in the decision by your caseworker not to make specific enquiries to this effect. ”

In any event, like the judge, I do not think that Mrs Carter was prejudiced. Her solicitors had seen the complete file, including Dr Keen’s earlier reports. They were fully aware of the issues, and the council’s views on them, and had the opportunity to make representations on them.

In conclusion I would make two comments. First, I must express some surprise at the volume and length of correspondence which these cases generated between the solicitors and the council. The only issue in real dispute, that of vulnerability, was a narrow point, turning largely on the view taken of the medical assessment. Such an issue may not be easy to determine, but it does not usually require extensive elaboration in the representations, or in the decision letter. The task of the reviewing officer would be made easier if those representing applicants concentrated their submissions on the critical issues. Secondly, it is unfortunate that the question posed by the council’s standard form of request to the medical adviser directed attention, not to the risk of harm, as required by the Pereira test, but to the ability to find accommodation. It may be that advisers are generally familiar with the Pereira test. However, Mr Beglan for the council rightly accepted that this was a matter which required reconsideration.

For the above reasons, I would allow the appeals and remit the cases for reconsideration by the council.

I agree.

I also agree.