Mr and Mrs Shala are refugees from Kosovo: that is to say that their claims for asylum have been accepted as genuine and they have been granted indefinite leave to remain. We do not know the detail of the personal histories behind the claims, but it is known that they underwent serious ill-treatment and lost contact with three of their daughters. To this day they do not know what has happened to them. Their other two children, both young adults, are with them.

While they were asylum-seekers they were provided with housing and support through the National Asylum Support Service. It is an irony that, once a claim for asylum is accepted, the status which creates this entitlement comes to an end and refugees, often badly traumatised, have to fend for themselves.

Mr and Mrs Shala, finding themselves in this situation, applied to Birmingham City Council for housing as persons in priority need. Initially and then on review they were refused, and their appeal to Judge McKenna at Birmingham County Court was dismissed on 2 August 2006. Neuberger LJ (as he then was) stood over their application for permission to bring what would be a second appeal to be heard by a full court on notice, with the appeal to follow if permission was granted. At the end of the hearing we granted permission and, on the basis of the full argument we had heard, reserved our decision on the appeal.

In our judgment the appeal succeeds. Our reasons will, we hope, make it apparent why we consider that, despite being a second appeal, it merits the court’s attention. Apart from being a matter of major consequence to the wellbeing of people whom this country has assumed an international obligation to protect, it raises an important point of practice in relation to the obtaining and use of medical advice by local authority decision-makers.

The relevant legislative provision now found in the Housing Act 1996 for identifying persons in priority need of housing can be shortly summarised. By s.189 those in priority need include any person who is vulnerable as a result of mental illness or for some other special reason. Vulnerability here, according to §8.13 of the 2002 Code to which local authorities were at the material time required by s.182 to have regard, meant being less able to fend for themselves than the ordinary homeless person, so as to be likely to suffer injury or detriment where a less vulnerable person would be able to cope with harmful effects. (Since then, following the decision of this court in Griffin v Westminster City Council [2004] HLR 32, the Code has been amended so that the question is whether the applicant would be less able to fend for him or herself, so that he or she would suffer injury or detriment: 10.13). S.202 entitles an applicant who is turned down to an in-house review. S.204 gives an appeal on law to the county court.

The critical document is therefore the review decision, which in this case takes the form of a letter from a reviewing officer, Mr Jonjo Hegarty, dated 3 April 2006. It addresses the cases of both Mr and Mrs Shala, but it is Mrs Shala’s case alone which forms the basis of the two appeals. The appeal turns upon Mr Hegarty’s handling of the medical evidence supplied by the Shalas’ solicitors, the Community Law Partnership.

A decision letter is intended to speak for itself and ordinarily does so, making explanatory witness statements such as that of Mr Hegarty, which was placed before Judge McKenna, irrelevant and therefore inadmissible. Before us, Catherine Rowlands, counsel for the local authority, has rightly not sought to rely on it. But it is necessary first to set out the background to the review decision.

The initial refusal decision was given on 4 November 2005. The medical evidence about Mrs Shala before the initial decision-maker consisted of the following:

A report dated 22 July 2003 from the Shalas’ GP, Dr Elizabeth Gonzalez, diagnosed hypertension and depression and recorded low mood and constant weeping. Antidepressants had been prescribed and a psychiatric assessment was awaited.

A second report from Dr Gonzalez dated 8 September 2004 recorded that Dr Snape, a psychologist, had examined Mrs Shala and confirmed the diagnosis of depression. It recorded that she had been under the care of a consultant psychiatrist, Dr Omoigui, who had diagnosed post-traumatic stress disorder, probably because of her missing children, but that she had been discharged following two non-attendances at appointments. In March 2004, however, she had referred herself back for psychiatric help, again recounting sleep disturbance and reluctance to leave the house, as well as financial worries and fleeting suicidal thoughts. The continuing diagnosis was depression.

Following the adverse initial decision a review was applied for. The further evidence initially obtained on Mrs Shala was a note of a telephone conversation with her new GP, Dr Salmon, on 8 November 2005, confirming the diagnosis of depression and recording a prescribed dosage of 30mg citalopram.

The local authority then took its own medical advice on the basis of the material so far available to it. It consulted Dr John Keen, who on 14 November 2005 reported in relation to Mrs Shala:

Mrs Shala’s advisers then obtained further medical evidence for the reviewing officer to consider.

On 15 December 2005 Dr Mukherjee, now Mrs Shala’s GP, reported: “Mrs Shala suffers from severe post-traumatic stress disorder and is currently on high dose anti-depressants and is under the care of the Community Psychiatric Team. She also suffers from hypertension and osteoarthritis. She has also recently developed severe neck and arm pain, and has been referred to the orthopaedic triage department for assessment. All of these conditions are very debilitating and as such she is not able to work and is being cared for by her son and daughter. Both of whom are now showing signs of strain having to cope with parents that are severely debilitated.”

There was also by now a first report from Dr Deb which, although dated 7 November 2005, had not been among the materials seen by Dr Keen when he wrote his initial report of 14 November 2005. Dr Deb, an associate specialist in psychiatry with the Birmingham and Solihull Mental Health NHS Trust, wrote: “This lady is very depressed …..” The rest of the very short report noted the patient’s history but also included the potentially important fact that she spoke no English.

The local authority then sought a further commentary from Dr Keen. His report, dated 16 January 2006, was based on the two reports referred to in the previous paragraph and a report of 30 December 2005, which we have not seen, from a Nurse M Mukherjee. Dr Keen wrote:

After this report from Dr Keen, but well before the review decision was made:

On 23 January 2006 Dr Mukherjee wrote two further reports. In the first he said: “I can confirm given the medical problems that Mr and Mrs Shala have that they would be more vulnerable in a homeless state than would an ordinary homeless person without any attendant medical problems.” In the second he wrote “I am of the opinion that Mr and Mrs Shala would be when homeless less able to fend for themselves than ordinary homeless persons so that injury or detriment might result when a less vulnerable person would be able to cope without harmful effects.” In other words, Dr Mukherjee had initially reported on vulnerability in his own words and had then been asked to report in terms of the code.

On 1 February 2006 Dr Deb wrote a further report: “This lady suffers from post traumatic stress disorder associated with depression.” The report goes on to comment on her housing conditions, evidently in the belief that it was required for a routine rehousing application.

On 28 February 2006 Dr Deb wrote a further and fuller report on Mrs Shala, describing her enduring distress at the disappearance of her three daughters, her self-neglect and fear of going out, her nightmares and flashbacks, but noting that she had insight into her illness and its cause and was not expressing suicidal ideation. The report concluded: “This 56-year-old Kosovo asylum seeker [in fact, refugee] suffers from post-traumatic stress disorder associated with depression. She is quite unstable mentally and any prospect of being homeless will have a serious detrimental effect in her mental state. I believe because of her mental situation she is quite vulnerable and is less able to fend for herself than any person without a mental illness.”

In this light we set out the decision letter of 3 April 2006. Its length and occasional repetitiveness, which are not unusual, are likely to be a defensive reaction to local authorities’ experience of legal challenges, and we do not regard them as a criticism of the writer or of the panel for whom he is speaking. What concerns us is the letter’s content.

Your homeless application form.

Information you provided in support of the application prior to the decision.

Your review request and representation from Community Law Partnership, dated 7^th November 2005, 9^th November 2005, 11^th November 2005, 14^th November 2005, 19^th January 2006, 26^th January 2006, 3^rd February 2006, 13^th February 2006.

Further medical letters provided by you dated 7^th November 2005 & 15^th December 2005.

The recommendations of an independent medical advisor.

Further medical letters provided dated 23^rd January 2006 & 1st February 2006.

Information contained in your judicial review claim form fax dated 8^th November 2005.

Additional medical letter from Dr Mukerjee dated 23^rd January 2006.

Psychiatric report dated 28^th February 2006.

Disability living allowance claim form.

You state that you are vulnerable as former asylum seekers also because you have various health issues, namely depression/post traumatic stress disorder, pains to the legs arms and neck and hypertension. You also argue that you cannot speak English and would be vulnerable for this reason.

It seems to us that this decision is flawed on the classic ground that it has excluded from consideration something of real, and possibly decisive, relevance, namely the further reports of Dr Mukherjee and Dr Deb. They are both dismissed on the ground that Dr Deb’s report of 28 February “does not raise any new information that isn’t already known to us”. This is wrong in two major respects. One is that the further medical evidence came not only from Dr Deb but from Dr Mukherjee. The other is that both doctors described Mrs Shala’s condition in terms different from, and arguably graver than, those which had led Dr Keen to his opinion the previous November. Mr Hegarty was not entitled, in our judgment, to ignore the one and dismiss the other as adding nothing. Whether the panel took Dr Keen’s further advice on reports was a matter for them, but they were not entitled to treat these reports as adding nothing to what was already known.

This is enough to warrant allowing the appeal, but there are other grounds for concern. The pointed reference to Dr Keen’s view as “impartial”, suggesting that the views of Dr Mukherjee and Dr Deb might not be, is most unfortunate. In the light of it, it was particularly important that the remark in Dr Keen’s second report that “there is no particular assertion of severity” should be matched with great care against the terms of the reports on which he was commenting: “very depressed”; “severe post-traumatic stress disorder”; “high dose anti-depressants”. No attempt is made to do this: instead Dr Keen’s is treated as a dependable opinion, albeit he has never examined Mrs Shala or discussed her case with a doctor who has, and Mrs Shala’s medical advisers are first criticised for applying the wrong legal test and then told that vulnerability is not a matter for them. We are also concerned at the preparedness of the decision-maker to introduce further reasons based upon what appears to be his own psychiatric input.

Even, therefore, if there had not been a patent error in the appreciation of the medical evidence before the local authority, we would have considered the tone and reasoning of the decision letter, by tending unacceptably towards an adverse decision, to have displayed a want of fair-mindedness.

Dr Keen, according to the documentary evidence, is a registered medical practitioner in general practice in West London. His CV indicates that he also offers, through a business called NowMedical, medical advice to housing authorities and social providers, a number of whom he lists, as well as to NASS and the Home Office. A section of his CV headed “MENTAL HEALTH EXPERIENCE” makes no claim to specialist training but points out that general practice involves regular contact with a wide range of mental illness, and says that his own practice both offers an NHS-funded in-house psychotherapy service and monitors and treats patients with severe mental illness. But those who rely on his opinions need to bear in mind that, notwithstanding this wide experience in general practice, he is not a qualified psychiatrist.

It is entirely right that local authority officers, themselves without any medical expertise, should not be expected to make their own critical evaluation of applicants’ medical evidence and should have access to specialist advice about it. What would not be acceptable is seeking out advisers to support a refusal of priority need housing wherever possible. There is nothing in the material before us to suggest that Dr Keen’s service is of this kind. Although he features in a number of reported homelessness cases as the local authority’s medical adviser, it is a necessary feature of those cases that there has been a refusal and that his advice has therefore been negative. We do not know in how many cases he has supported a claim of priority need. One would certainly expect there to be such cases. Edward Fitzpatrick, counsel for the appellant, has therefore rightly sought to cast no adverse imputation on Dr Keen, but he submits, and we agree, that care has to be taken by local authorities not to appear to be using professional medical advisers simply to provide or shore up reasons for a refusal.

It is not the doctor but the local authority who has the duty of deciding whether the statutory tests of priority need are met. As has been seen, Dr Keen did not attempt to formulate his advice in the language of the Act or the cases decided under it. Yet the alternating criticisms of Mrs Shala’s doctors in the decision letter show why the Community Law Partnership had felt obliged to go back to Dr Mukherjee at one point for a report cast in terms of the eventual statutory decision.

This is not an altogether simple matter. Medical and other advisers, while it is not their task to take the local authority’s decision for it, are helpful only to the extent that they furnish material within their professional competence which addresses issues which the local authority has to decide. Local authorities are doing applicants, and themselves, a service if they direct medical (and legal) advisers’ attention to these issues. But they are not entitled, nor even well advised, to demand that the opinion or advice be couched in terms of their eventual decision. Medical practitioners, on the other hand, need to direct their opinions as nearly as possible to the issue which the recipient has to decide, and may well need to be told by their patients’ lawyers what that issue is. There is no single right way of dealing with this, but in our view there is no harm and some good in medical advisers directly addressing, if appropriate in exact terms, those matters within their professional competence which the local authority has to make a decision about, so long as both they and the local authority recognise that it is for the latter to make its own appraisal of every opinion in the light of the available diagnostic and evidential material.

It is appropriate in this light to consider the role of a practitioner such as Dr Keen. While this court in Hall v Wandsworth LBC [2005] HLR 23, §42, described his report to the local authority as constituting not merely commonsense comment but expert advice, the limited extent and character of his expertise has to be borne in mind by those using his services. As another constitution of this court pointed out in Khelassi v Brent LBC [2006] EWCA Civ 1825, §9, 22, Dr Keen is not a psychiatrist, with the result that the county court judge had been fully entitled to regard his dismissive comments on a qualified psychiatrist’s report insufficiently authoritative for the local authority to rely on. In this situation a local authority weighing his comments against the report of a qualified psychiatrist must not fall into the trap of thinking that it is comparing like with like. His advice has the function of enabling the authority to understand the medical issues and to evaluate for itself the expert evidence placed before it. Absent an examination of the patient, his advice cannot itself ordinarily constitute expert evidence of the applicant’s condition.

Dr Keen twice advised on Mrs Shala’s condition without examining her. There is no rule that a doctor cannot advise on the implications of other doctors’ reports without examining the patient; but if he or she does so, the decision-maker needs to take the absence of an examination into account. Local authorities who rely on such advice, and doctors who give it, may therefore need to consider – as many already do - whether to ask the applicant to consent to their having their own examination. Between these two poles, however, there is a third possibility – that the local authority’s medical adviser, again with the patient’s consent, may speak to the applicant’s medical adviser about matters which need discussion. It may be thought, for example, that Dr Keen would have been helped by discussing with Dr Deb or Dr Mukherjee, or both, just how depressed Mrs Shala was (Dr Deb’s epithet “quite” has a sizeable range of meaning) and whether the anti-depressant dosage prescribed for her reflected only moderate depression or was conditioned by factors such as her being concomitantly on other medication or a disinclination of the practitioner to over-prescribe. The caveat we would enter, because of misunderstandings which can easily arise, is that any such discussion should be informal and only an agreed minute of it, if one results, become part of the case materials.

We have set out these considerations, first, in order to explain why we consider the case a proper one for a second appeal, but secondly because this is an area of law which impinges directly on two important and in part conflicting interests. One is the need of local housing authorities to husband their resources and to ensure that only those genuinely entitled are treated as in priority need. The other is the catastrophic consequences of a failure to house someone whose vulnerability will make them unable to cope with homelessness - a legal test which itself makes the dubious assumption that homelessness is something fit people can always cope with. Only a properly approached and fairminded decision can hold these interests in balance.

For the reasons we have given, we consider that the review decision in this case failed to meet the standard required by law, and so must be quashed and retaken. Mrs Shala’s appeal is accordingly allowed.