ON APPEAL FROM BIRMINGHAM COUNTY COURT
HIS HONOUR JUDGE MCKENNA
6B051239
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE MUMMERY
LORD JUSTICE SEDLEY
and
MR JUSTICE LIGHTMAN
Between
SHALA & ANOTHER | Appellant |
- and - | |
BIRMINGHAM CITY COUNCIL | Respondent |
(Transcript of the Handed Down Judgment of
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Mr E Fitzpatrick (instructed by The Community Law Partnership) for the Appellant
Ms C Rowlands (instructed byBirmingham City Council Legal Services) for the Respondent
Hearing date: Tuesday 15 May 2007
Judgment
Lord Justice Sedley :
This is the judgment of the court.
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 medical evidence
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:
“The applicant has a history of depression which has necessitated referral for psychiatric assessment; however her condition is currently being treated with citalopram, a standard Prozac equivalent anti-depressant drug alone and likewise 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.”
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:
“Further to my advice of 14 Nov 05, I note the letter from Dr Deb, the applicant’s psychiatrist which confirms the applicant’s diagnosis of depression. However there is no particular assertion of severity nor that psychiatric hospital admission or other substantial treatment is necessary and likewise she remains under treatment with a single standard Prozac anti-depressant drug alone.”
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.”
The review decision
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.
3rd April 2006
Dear Mr & Mrs Shala
HOMELESS REVIEW PANEL
YOUR CLIENTS: MR HAMDI SHALA & MRS SABRIE SHALA
Further to our last correspondence your solicitor has now provided us with the new information they wished to supply in support of your review request. I have considered all of the evidence you have provided to-date including letters from your GP and your psychiatrist. I am now [writing to] you again under Section 203 of the Housing Act 1996 to notify you of our decision and the reasons for it.
We have considered all the evidence including:
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 7th November 2005, 9th November 2005, 11th November 2005, 14th November 2005, 19th January 2006, 26th January 2006, 3rd February 2006, 13th February 2006.
Further medical letters provided by you dated 7th November 2005 & 15th December 2005.
The recommendations of an independent medical advisor.
Further medical letters provided dated 23rd January 2006 & 1st February 2006.
Information contained in your judicial review claim form fax dated 8th November 2005.
Additional medical letter from Dr Mukerjee dated 23rd January 2006.
Psychiatric report dated 28th February 2006.
Disability living allowance claim form.
In your review request you gave the following reasons why you considered the original decision to be incorrect:
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.
Detailed overleaf is the Panel’s response to the queries you have raised.
As part of our ongoing enquiries I have made contact with the persons treating your medical conditions, you have also provided your own letters supporting the application for which I made further contact with your GP in order to obtain further information on your medication and dosages.
I have consulted with an independent medical advisor who is also a registered GP with a broad knowledge of the medications and treatments available for each condition. He also has experience of psychiatric health as many conditions first present and are treated at a local level. I have furnished the medical advisor with all the available evidence including your own statements and letters from your GP, including the prescription details. As previously explained in my minded letter of 17th January 2006, we have been provided with details on the specific medication you both take and what action would be expected from a medical point of view should your conditions be severe of disabling in type. The medical advisor scrutinised your housing file, all of the medical information provided and mindful of the Pereira test has made no specific housing recommendations on your case.
You have then furnished us with two more medical letters; one from Dr K Deb dated 1st February 2006, which again reiterates that you suffer from post-traumatic stress disorder associated with depression. You provided another letter from your GP, Dr Mukherjee, which states he has considered the statement provided by your legal representative, namely the “Pereira test” as he interprets “would you be more vulnerable in a homeless state than an ordinary homeless person without the attendant medical problems” for which he agrees. However this is not the test, he has furthermore not explained why he has reached this view or even demonstrated that he has applied the test correctly.
You have now provided us with a new letter from Dr Mukherjee dated 23rd January 2006 in which he has reworded his letter at your request quoting the correct Pereira test, however as previously stated he has not demonstrated that he has applied the test correctly or explained how he has reached the conclusion. I do not consider this letter changes our original decision. As previously stated, it is for the local authority to make the overall decision on vulnerability having regard to the legislation and all of the information available to us within your housing file. After balancing your overall circumstances, having regard to your own statements on how the conditions restrict you, also considering your doctors letters and submitting both to our own medical advisor for an impartial view, I have made the overall decision that I do not consider that your medical conditions render you vulnerable as a result of a physical, mental disability or other special reason. I have considered whether you are less able than an ordinary homeless person to obtain and once obtained keep accommodation and whether you are less able to fend for yourself when homeless than an ordinary homeless person, so that injury or detriment will result when a less vulnerable person would be able to cope without harmful effects. You say you cannot leave the house unless accompanied by your daughter, but we do not consider this to be a necessity, there is nothing to suggest that your condition is so severe that you cannot leave the property without your daughter, she is furthermore in receipt of jobseekers allowance, a requirement of which is that she is actively seeking employment. If as you claim she is required to care for you, and if as you claim your condition was that severe that it warranted a full-time care, she would be entitled to carers allowance and we would expect her to be claiming this. She is not your registered carer.
You have the support of your GP, the Birmingham & Solihull Mental Health Trust and your adult children. You would continue to have access to this support and your medication as a homeless person. You are in receipt of state benefits and are not destitute. You are entitled to a rent deposit through the Birmingham Bond scheme, which will assist you to identify suitable accommodation in the private sector. You are also aware of your entitlement to housing benefit, as you demonstrated when you applied on the 1st November 2005, which unfortunately left you with an unreasonable shortfall. You have full access to all advisory services in Birmingham, which again you have demonstrated an ability to access, furthermore all public sector services offer interpretation services to those where English is not a first language and help completing forms. In my opinion you have always sustained a keen interest in your housing application, you have been available to speak with me via telephone, have obviously maintained appointments with your legal representatives who have provided us with many letters and statements on your behalf, you have also been proactive in providing all the necessary information and supporting letters we have required in dealing with your case. You have not provided any information to suggest your mobility is severely impaired or that you are immobile. You have reported pains in your legs, arms and neck but the doctor has stated you await assessment, no formal diagnosis has been made and he does not comment on it severely affecting your mobility or abilities at this time.
Whilst residing at Davey Road you were able to maintain this accommodation and made attempts to take on the tenancy yourself once it became apparent that your NASS support was being withdrawn. You applied for housing benefit in your own right however they were not prepared to pay the amount your landlord required. You have always been forthcoming in accessing the services you are entitled to and seeking advice and assistance where necessary, I remain satisfied that you are capable of obtaining your own accommodation and once doing so maintaining it. I am further satisfied that you are no less able to fend for yourself than an ordinary homeless person so that injury or detriment will result when a less vulnerable person would be able to cope without harmful effects, I do not consider your medical conditions to be of a severe nature as already stated above, I am satisfied that you are receiving appropriate treatment for these and would continue to do so if you became street homeless.
In regards to you being vulnerable as former asylum seekers I do not consider this to be the case. We accept that you may have had to flee persecution and accept that you now have post-traumatic stress disorder associated with depression because of your experiences, however you are receiving appropriate medical treatment to help you deal with this. Whilst your claim for asylum was being processed you were receiving the support of (NASS) the National Asylum Support Service. Who assisted you financially and provided accommodation to you. We do not consider you have been financially burdened by coming to the country, you came here of your own volition, asylum seekers are not reimbursed for costs they occur in travelling here. I appreciate that you are required to leave accommodation made available to you whilst your asylum claim was being processed, but this was an inevitable fact that was always known to you. You were aware the accommodation being provided to you was pending your asylum claim.
You have now furnished us with new medical evidence in the form of a psychiatric report dated 28th February 2006. The report itself does not raise any new information that isn’t already known to us, your doctor explains how you and your daughter have claimed the condition of post-traumatic stress disorder affects you and include your own statements. We note that it does not say you did not express any bizarre thoughts, or strange ideas. You had expressed ideas of dying but never done anything to harm yourself, you also had insight into your illness and recognised that it is due to your experiences in Kosovo and due to your three missing daughters. You have been taking medication for some years because of this condition and have informed the doctor that you are understandably concerned about the prospect of being homeless.
The doctor confirms the diagnosis already known to us and expresses her opinion that you are quite unstable mentally and that being homeless would have a serious detrimental effect on your mental state, she considers you to be vulnerable and less able to fend for herself than any person without mental illness. She has however not felt it necessary to change your medication, which you have been taking for a few years, given the alleged instability and vulnerability, which as we have previously stated is quite a standard anti-depressant treatment. We have taken on board the report but it not for the doctor to make our decision on vulnerability, she has stated her opinion with your best interests in mind but has not applied or considered the appropriate test.
We have also considered the application you have submitted for disability allowance as requested but again, with respect this is your own take on the situation and not any new documented evidence of a severe health problem that would make you any less vulnerable when homeless. You have not informed us that the benefit had been awarded but we are aware that this particular benefit is assessed on your own declarations and as such does not prove anything. We find it contradictory that you have been taking your medication for a number of years, which is a standard Prozac equivalent drug at a relatively low, [dose] . You have not been admitted to a psychiatric hospital or needed any additional intervention other than that you currently receive, there is also nothing to suggest your condition is psychotic yet you claim you cannot do the most basic tasks without the assistance of your daughter, who is not your registered carer and is herself in receipt of jobseekers allowance meaning she must be actively seeking employment. Post-traumatic stress disorder is a treatable condition, if your condition were as bad as you seem to perceive it to be, your doctor would not simply leave you on your current medication, other alternatives would be tried in order to improve your situation. Surely if your conditions were as bad as you claim the priority would be enhanced medical input.
Considering all of the evidence before me and having regard to your overall circumstances I am of the opinion that your conditions are not severe in nature or disabling. I have considered the provisions of Section 189(1)(c) of the Housing Act 1996, the code of guidance and the case of R v Camden LBC ex Pereira test, [namely], whether a person is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment will result when a less vulnerable person would be able to cope without harmful effects and have applied this to your circumstances. All relevant considerations have been made based on the information available to us at the time of this decision.
I am satisfied that you are not in priority need and accordingly must inform you that we have decided to uphold the original non-priority decision. Under Section 204 of the Housing Act 1996 you have a right to appeal to the County Court on a point of law within 21 days of this notification.
Yours sincerely
Jonjo Hegarty
Review Officer
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.
The use of medical advisers
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.
Conclusion
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.