London Borough of Wandsworth v Allison

With permission granted by Jacob LJ on 16 July 2007, the London Borough of Wandsworth (Wandsworth) appeals against an order made by the late Recorder Robin Spon-Smith sitting in the Wandsworth County Court on 31 May 2007. By his order, the Recorder allowed an appeal by Mr Philip Allison under section 204 of the Housing Act 1996 (the Act) against a determination by Wandsworth that he was not in priority need for housing within the provisions of section 189(1)(c) of the Act. As will be immediately apparent, this is a second appeal, and the provisions of section 55(1) of the Access to Justice Act apply to it.

The form this judgment will take will be to set out, under separate headings, the material (including the relevant authorities) available to the Recorder. This exercise, whilst perhaps somewhat lengthy, will, in my judgment, clearly explain the outcome of this appeal without the need for any detailed analysis.

Before embarking on that exercise, however, I need to point out that an unusual feature of the case is that Mr. Allison neither attended, nor was he represented at, the hearing of the appeal. Correspondence from his solicitors made it clear that he was abroad, and that as a consequence, his public funding certificate had been discharged on 20 January 2008. Wandsworth, nonetheless, urged us to hear the appeal, and we duly did so. At the conclusion of the argument, we reserved judgment.

We are grateful to Mr. David Lintott, counsel for Wandsworth, both for his clear and cogent submissions, and for responding to a request from Arden LJ to set out the arguments that Mr. Allison may have wished to raise in this court had he been represented by counsel. As it happened, we also had a skeleton argument prepared for this court by counsel for Mr. Allison prior to the discharge of his public funding certificate. I will make further reference to this document later.

I take these largely from the helpful chronology prepared by counsel for Wandsworth in the county court. Mr. Allison is 57. He arrived from the Philippines on 7 September 2006, and was admitted to the Chelsea and Westminster Hospital (the Hospital) on the same day with suspected deep vein thrombosis (DVT). He had been in the United Kingdom before, and Wandsworth had previously refused an application for priority housing for him. We are not, however, concerned in any way with the previous application.

On 12 September 2006, Mr Allison applied for emergency housing under Part VII of the Act. He was both interviewed and completed a medical assessment form on the same day. On 19 September 2006 his application was rejected by Wandsworth. Following a review, during the course of which the papers were submitted to Wandsworth’s Medical Adviser, Dr. John W. Keen, a decision letter dated 19 October 2006 under section 184(3) of the 1996 Act was written to Mr. Allison stating that, in Wandsworth’s view, Mr. Allison was not in priority need of housing within section 189 of the Act. Following a further review, during which the papers were submitted for a second time to Dr. Keen, Wandsworth confirmed its decision, initially in a “minded to” letter dated 17 January 2007, and finally in a decision dated 30 January 2007. It is the latter which formed the basis of Mr. Allison’s appeal under section 204 of the 1996 Act.

The terms of Part VII of the Act, which deals with homelessness, are very familiar. Mr. Lintott produced them for us in the form in which they are published (complete with a detailed commentary) in the Housing Review. This comprised a substantial bundle. However, with the exception of section 189(1)(c) itself, it does not seem to me to be necessary to set out the different sections in detail, and for my part I am prepared to adopt the summary contained in Mr. Lintott’s skeleton argument.

Section 175 of the Act provides that a person is homeless if he has no accommodation that he is entitled to occupy and that it is reasonable for him to occupy. Section 184 provides that where a local housing authority have reason to believe an applicant is homeless they must make enquiries to satisfy themselves whether a duty, and if so what duty, is owed to him. On completing their enquiries the authority must notify him of their decision (section 184(3)). The authority must secure that accommodation is available for the applicant where it is satisfied that an applicant is homeless, eligible for assistance, has a priority need and has not become homeless intentionally (section 193).

Thus, as applicable to the instant case, section 189(1)(c) provides that:

The decision as to whether or not a person falls with section 189(1)(c) of the Act is one for the local housing authority to make. However, section 202(1) of the Act gives a person in Mr. Allison’s position the right to request a review of Wandsworth’s decision, and section 204 provides a right of appeal to the county court on point of law if an applicant who has requested a review under section 202 is dissatisfied with the decision on the review.

As the Recorder recognised, the jurisdiction exercisable by the county court under section 204 of the 1996 Act is analogous to, albeit somewhat wider than, that exercised by the Administrative Court on an application for judicial review: - see, for example, the decision of this court in Nipa Begum v L.B. TowerHamlets[2000] 1 WLR 306 at 313, in which Auld LJ summarised what is meant by an appeal on a point of law in this context in the following words:-

Furthermore, as Lord Brightman pointed out in R v L.B. Hillingdon ex p. Puhlhofer[1986] 1 A.C. 484 at 518 (Puhlhofer) the local authority are the arbiters of fact in such cases. Puhlhofer was a case decided under the Housing (Homeless Persons) Act 1977, but Lord Brightman’s words apply equally to Wandsworth’s duty to Mr. Allison under section 189(1)(c) of the Act:-

As Mr. Lintott pointed out, the issue in the instant case was whether or not the applicant was in priority need: in particular, whether he was vulnerable within the class set out at section 189(1)(c). I also agree with Mr. Lintott –a point also accepted by the Recorder - that the classic formulation of the meaning of “vulnerable” within section 189(1)(c) of the Act is in R v Camden LBC ex parte Pereira(1999) 31 HLR 317 at 330 (Pereira) in the judgment of Hobhouse LJ namely:-

Mr. Lintott also reminded us that Auld LJ had set out the test to be applied in greater detail in Osmani v Camden LBC[2004] EWCA Civ 1706, 37 (2005) H.L.R. 22. At paragraph 34, Auld LJ made it clear that the courts had recognised the difficult, involved nature of the decision-making process, particularly in the context of decisions on vulnerability and priority need:

At paragraphs 35 to 38 of his judgment in the same case, Auld LJ identified the following matters which must be borne in mind, which Mr. Lintott accurately summarised as the following, namely:

In paragraph 38 of the same judgment, Auld LJ added:-

Auld LJ also pointed out at paragraph 40 of the same judgment that medical evidence may well be presented, but that vulnerability was not exclusively or even necessarily a medical question.

In summary, therefore, Mt. Lintott submitted that whether or not Mr. Allison had a priority need for accommodation was a matter for Wandsworth, subject to the right of review under section 202(1)(a) and his right of appeal on a point of law to the local county court under section 204. He further submitted, by reference to the authorities, that if the Housing Authority had asked itself the right Pereiraquestion; if it had sought to answer it conscientiously by reference to the evidence it had gathered; and had given its answer, it would be a rare case in which the court would be able to strike down the decision. A court should thus only exercise its power to vary a decision taken under section 204 if there was no real prospect that the decision-maker “acting rationally and with the benefit of further inquiry” might have been satisfied that a person in Mr Allison’s position was not in priority need. For this proposition, Mr. Lintott relied on the judgment of May LJ in this court in TowerHamlets v Deugi[2006] EWCA 159 at paragraph 36.

Against this background, I propose to set out the medical evidence available to Wandsworth and to the Recorder. It comprised the following:-

On 26 January 2007, a Wandsworth social worker completed a “Summary of Needs and Risks, Sensory and Physical Disabilities” (known as the “SPD”). Although the social worker was plainly not medically qualified, and her report was not considered by the judge under the heading of the medical evidence, nonetheless, under the heading “Health and Safety” she refers to Mr Allison’s DVT and gives her opinion that:-

For present purposes, I propose to concentrate on the decision letter of 30 January 2007. This is a detailed document, running to some 9 pages, and is signed by Marcia Anglin, a Senior Reviews Officer.

Having set out the background, and correctly identified that the section to be considered was section 189(1)(c) of the Act, Ms Anglin firstly identified and applied the Pereira test in relation to vulnerability. This is what she said:-

It was accepted by the Recorder (and I agree) that this is an accurate statement of the Pereira test. Ms Anglin then listed the medical reports (in which she included the SPD) which I have summarised in paragraphs 19 and 20 of this judgment, and stated that these had been referred to Dr. Keen. In relation to the reports generally, Ms Anglin comments:-

Ms Anglin then goes on to record and to reject the submission made by Mr. Allison’s representatives that his failure to take his medication was attributable to his homelessness in the period immediately prior to his departure from the Philippines to the UK.

The decision letter then continues:-

Ms Anglin then goes on to consider Dr. Matthey’s reports, including the report received as a result of the request made on 19 December 2006. She says:-

Ms Anglin then goes on to consider in more detail Dr Matthey’s report of 5^th January 2007, which I have summarised at paragraph 19(8) above, and makes the point that the studies to which Dr Matthey refers do not address Mr. Allison’s case specifically, or the specific risks he faced. She points out that, on the figures produced by the studies, 99.5% of DVT sufferers would live through the condition in a year, and that 99% would not have a life threatening or fatal bleeding.

Ms Anglin then refers to Dr. Gomez’s report of 25 October, and his conclusion that without adequate shelter it was likely (a word she highlights) that Mr Allison’s thrombotic complications would recur. She then comments:-

Ms Anglin then refers to Dr. Gomez’s further report, which I have summarised in paragraph 19(5) above, and the SPD assessment. She concludes that there was no evidence to support any claim that being homeless would increase the risk of a recurrence of DVT, and after a reference to the case of Griffin v City of Westminster ([2004] EWCA Civ 108) she expresses her conclusion in relation to DVT in the following terms:-

Ms. Anglin then goes on to consider the question of Raynaud’s Phenomenon. As this is an area in relation to which the Recorder was particularly critical of the decision letter, I propose to set out the relevant passage in the decision letter in full.

Ms Anglin then turns to the question of Mr Allison’s hypertension. Nothing turns on this. She concludes her analysis of the medical evidence with these words:-

Although the decision letter continues for another two pages, nothing appears to turn on the remainder of Ms Anglin’s conclusions. She does, however, consider the question of Mr. Allison’s vulnerability in considerable detail, and concludes that he was not vulnerable within section 189(1)(c) of the Act. In summary and on balance she finds no reason to consider the decision under review unreasonable, and she upholds it. In so doing, she says that she had had regard to the Code of Guidance for Local Authorities issued by the DCLG. She concludes by reminding Mr. Allison of his right of appeal.

The Recorder gave an extempore judgment. He described the homelessness provisions of the Act as having become “encrusted” with a considerable number of judicial decisions by the Court of Appeal and by the House of Lords, and stated his view that the topic had become potentially very complex. He then stated his intention to express his conclusions as to the issues raised as shortly and as simply as possible.

For my part, I think it unfortunate that the Recorder did not take longer to consider his judgment. Had he done so, he might well have taken the opportunity to re-read the medical evidence, and the housing officer’s analysis of the position under section 189(1) (c) of the Act.

Having identified the relevant statutory provisions, the Recorder summarised the grounds of appeal in the following way:-

The Recorder then went on to consider the meaning of the word “vulnerable”. He commented that the word was not particularly obscure, and adopted a dictionary definition of “able to be easily physically, emotionally or mentally hurt, influenced or attacked”. He did not detect any concentration in the reported cases on the meaning of the word, and identified the decision of this court in Perieraas the leading case. He then extracted the following proposition from that case, namely that a person was “vulnerable” within section 189 of the Act “if, when homeless, he would be less able to fend for himself than the ordinary homeless person, so that injury or detriment would result to him which would not befall a person who was not vulnerable”.

Slightly later in his judgment, the Recorder examined Ms Anglin’s statement of the Pereira test. He picked up her application of the test as set out at paragraph 31 above and commented:-

I interpolate at this point that the Recorder plainly did not seek to strike down the decision on the basis that Ms Anglin had misapplied the Pereira test.

The only other direction which the Recorder gave himself as to the law appears in paragraph 12 of his judgment, where he says:-

After further argument, during the course of which a number of authorities were cited to him, the Recorder adhered to his decision, although he recognised that:

The critical aspect of the Recorder’s judgment is his analysis of the detail of medical evidence. This is how he introduced the matter:-

The Recorder then recites the passage from Dr. Matthey’s report dated 5 January 2007, which I have set out at paragraph 19(8) above. He also refers to the two reports from Dr Keith Gomez, which I have summarised at paragraph 19(4) and (5), and to the report of Dr. Morgan, to which I have referred at paragraph 19(6). The Recorder continues:-

The Recorder then turns to the reviewing officer’s treatment of the question of Raynaud’s disease or Raynaud’s phenomenon, which he identifies as “a recognised disease which causes a particular set of symptoms”. He then cites part of the passage form Ms Anglin’s decision which I have set out in paragraph 30 above, and in particular her assertion that there was “no confirmed diagnosis”. In relation to this the Recorder says:-

The Recorder then refers to and cites from the discharge summary report from the Hospital, and in particular, the addendum which I have set out at paragraph 19(2) above. The Recorder then comments: -

The Recorder then cites further from the decision letter (in the passage set out at paragraph 28) above, and continues:-

The Recorder then goes on to reject the fourth criticism of Wandworth’s decision, namely Ms Anglin’s assertion that she had considered Mr. Allison’s medical problems “singly and as a composite and the effect of those on you”. The Recorder took the view that the force of Mr. Allison’s criticism – what he referred to as the “failure to make necessary enquiries” - was vitiated by the fact that on 17^th January, before the review decision letter was sent, what has been referred to as a “minded to” letter had been sent to Mr Allison’s solicitors indicating, but not at that stage formally deciding, that the authority was minded to make an adverse decision on the review, and inviting a response. That letter had given Mr. Allison’s advisers that opportunity to counter the point with evidence as to the combined effect of the three conditions from which Mr. Allison suffered. This they had not done.

Despite having resolve this latter point in Wandsworth’s favour, the Recorder expressed his conclusion in paragraph 11 of the judgment, in which he said:-

As previously explained, the Recorder then went on not simply to quash the decision and remit it for reconsideration; but, exercising his powers under section 204(3) of the Act, to make a declaration that Mr Allison was in priority need of accommodation in accordance with section 189(1)(c) of the Act.

Mr. Lintott’s first point was that the Recorder was wrong to hold that, on the available evidence “it simply was not open to the writer of the decision/ review letter to say that the reports and medical evidence as a whole did not support the conclusion that there is an increased risk of DVT as a result of homelessness”. He pointed out that Ms Anglin had referred to the medical evidence to Dr Keen and, as she was entitled to do, she had preferred Dr Keen’s views, which I have set out in paragraph 19(3) and (9) above. Mr. Lintott pointed out that nowhere in the Recorder’s decision does he refer to Dr Keen’s evidence or indicate why, if he took it into account, he was of the view that Ms Anglin could not rely upon it. Mr. Allison reminded us that matters of fact were for the Local Housing Authority not the court to determine: see the passage from Lord Brightman’s speech in Puhlhofer, which I have set out in paragraph 12 above.

Mr. Lintott’s second point was that the Recorder himself had failed properly to apply the Pereiratest (as set out in paragraph 13 above) to determine whether Ms Anglin had been wrong in her conclusion that the Respondent was not vulnerable. The Recorder had held that the Ms Anglin “went completely wrong” in her assessment of the evidence on DVT and Raynaud’s disease, but he had not gone on to consider, as he should have, whether Ms Anglin was wrong in law to conclude that Mr. Allison was, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment would result where a less vulnerable person would be able to cope without harmful effects. Nowhere, Mr. Lintott submitted, did the Recorder address Ms Anglin’s conclusion that Mr Allison could take his pills effectively when homeless, and that with continued compliance there was no particular risk of further thrombosis, with the consequence that Mr. Allison would not, when homeless, be less able to fend for himself than the ordinary homeless person so that injury would result when a less vulnerable person would cope without harmful effects. As Auld LJ had pointed out in Osmani, vulnerability under s.189(1)(c) was “not exclusively or even necessarily a medical question.” -see paragraphs 14 to 17 above.

Mr. Lintott's third point was the Recorder had been wrong to criticise Ms Anglin’s conclusion that there was no confirmed diagnosis of Raynaud’s Disease, and to hold that she had reached an “impossible conclusion”. This was because Dr Morgan had stated in her report of 21 November 2006 that Mr Allison had reported symptoms of Raynaud’s disease, and had added “however during his admission there was no clinical evidence of that”. Mr. Lintott pointed out once again that matters of fact are for the Local Housing Authority not the Court to decide. It was, he submitted, plain from the medical evidence that there was no confirmed diagnosis of Raynaud’s Disease. It followed, Mr. Lintott argued that the Recorder’s other findings in relation to Raynaud’s disease were equally unsound. Mr. Lintott reminded us that Dr Keen had noted that the Raynaud’s disease was minor only and “as asserted is not such as to necessitate current treatment”. Once again, Mr. Lintott argued, the Recorder had impermissibly assumed Ms Anglin’s role in determining the facts on this issue.

Mr. Lintott submitted, accordingly, that the Recorder had been wrong to find that Ms Anglin’s conclusions were perverse. Ms Anglin was the arbiter of fact on a Section 202 appeal. The weight to be given to the evidence considered by the Ms Anglin was a matter for her, provided that her decision was one which it was properly open to her to reach: - see Lord Brightman’s speech in Puhlhofer.

Mr. Lintott submitted that, in this case Ms Anglin had carefully considered all of the medical evidence in a decision letter which ran to some nine pages in length. She had the reports submitted on Mr Allison’s behalf well in mind. Her discussion of the reports had been prefaced by a correct summary of the Pereira test, which made it clear that she was considering how the Respondent would cope when homeless. She gave clear reasons why she did not share Dr Gomez’s pessimism in relation to how Mr Allison would be affected by his condition when homeless, and as to why she did not think the evidence provided by Dr Matthey gave rise to a finding of Pereira vulnerability. It was equally clear from the decision letter that Ms Anglin had the advice of Dr Keen in mind. Dr Keen’s view was that “compliance with Warfarin therapy is not an onerous duty, being merely the consumption of one/two tablets each day, and attendance at a clinic for occasional blood tests. With continued compliance there is no particular risk of further thrombosis.” This was advice she was entitled to accept.

Mr. Lintott also submitted that although the Recorder had set out the Pereira test correctly in his judgment, he had failed properly to apply it. He also submitted that similar considerations applied to the question of Raynaud’s Disease. The Recorder had been wrong to find that Ms Anglin’s conclusion that there was no confirmed diagnosis of Raynaud’s Disease was “not justified on the material before the officer” and an “impossible conclusion”. This was because Dr Morgan had stated in her report of 21 November 2006 that “(Mr. Allison) reported symptoms of Raynaud’s disease, however during his admission there was no clinical evidence of that”; and “It is difficult to provide a very strong case medically to support his petition for permanent housing on the basis of his initial assessment in September”. Mr. Lintott submitted that it was plain from the medical evidence that Ms Anglin was correct to conclude that there was no confirmed diagnosis of Raynaud’s Disease.

Mr. Lintott also submitted that the Recorder had been wrong to vary Wandsworth’s decision in the way that he did. However, I do not think it necessary to record Mr. Lintott’s arguments on this point. If the Recorder should have upheld the decision and was wrong to quash it, then it must follow that he was wrong to vary it.

In the skeleton argument prepared by counsel on Mr Allison’s behalf in this court, which is undated but which clearly predates the discharge of Mr Allison’s public funding certificate, counsel accepted that matters of fact and weight were essentially for Wandsworth subject to the grounds for a “judicial review” challenge. Counsel submitted that the relevant authorities were before the Recorder, and that he plainly had them in mind.

In paragraphs 5 and 6 of the skeleton argument, counsel took issue with the proposition that Wandsworth was entitled to prefer the evidence of Dr. Keen. In this context, reference was made to the decision of this court in the case of Shala v Birmingham City Council [2007] EWCA Civ 624. In Shala, the judgment of this court (Mummery and Sedley LJJ and Lightman J) was given by Sedley LJ. The case concerned an application by Mr and Mrs. Shala, who were refugees from Kosovo, for housing as persons in priority need. Whilst their applications for asylum had been pending they had been provided with housing and support through NASS.

As Sedley LJ pointed out, it was an irony that, once their asylum claim had been accepted, the status thereby created came to an end, and they had to fend for themselves. Hence their application to the local authority for housing as persons in priority need. The principal basis for the application was that Mrs Shala in particular was suffering from serious mental ill-health in the form of Post Traumatic Stress Disorder and depression.

In rejecting their claim, both the authority and, on appeal, the circuit judge relied on evidence which the authority had obtained from Dr. Keen, whose advice was recorded in the decision letter in the following terms:-

As a result (inter alia) of this opinion, the applicants obtained further evidence, and this court allowed the applicants’ appeal on the principal ground that there had been a patent error in the local authority’s appreciation of the medical evidence. In paragraphs 18 to 23, this court set out its views on the use of medical advisers with particular reference to Dr. Keen. In fairness to Mr. Allison, I propose to set out the entirety of these paragraphs:

In his skeleton argument, counsel for Mr Allison submitted that these observations applied in equal measure to the circumstances of the instant case. In particular, Dr Keen had not examined Mr Allison and had not discussed his case with Mr Allison’s doctors. There was no suggestion that Dr. Keen had the expertise or qualifications to enable him to give an expert opinion on Mr Allison’s condition. The proper role for Dr Keen, counsel submitted, was – as stated in paragraph 22 in Shala - to enable Wandsworth “to understand the medical issues and to evaluate the medical issues before it”. As a consequence, counsel submitted, the Recorder was entitled to conclude that Wandsworth had misunderstood the medical evidence before it.

In relation to Raynaud’s disease, counsel’s principal point was that Wandsworth had been in error in concluding that the disease was not severe because – if it were – Mr. Allison would be receiving treatment for it. The evidence was that Raynaud’s disease was largely unresponsive to medical therapy. The absence of treatment was, accordingly, unremarkable.

Counsel sought to refute the proposition that the Recorder had usurped Wandsworth’s role. The Recorder had taken a common sense view of the case when he said: “if one is street homeless, there are going to be considerable periods of time when one is suffering from cold”. This view was consistent with the medical evidence.

Generally, counsel submitted, the Recorder had had the correct tests well in mind. He had been entitled to quash Wandworth’s decision and to hold that there was no real prospect that, acting rationally, and with the benefit of further enquiry, Wandsworth could decide that Mr Allison was not in priority need. Two consultant haematologists had confirmed the position as regards Mr Allison’s DVT. Furthermore, Wandsworth’s own enquiries in relation to Raynaud’s disease confirmed that the condition was aggravated by the cold. Whether or not there had been a confirmed diagnosis of Raynaud’s disease, Wandsworth appeared to accept that Mr. Allison suffered from the symptoms of that condition, and as the Recorder had observed, it was obvious that his symptoms would be aggravated if he were homeless. Wandsworth had been wrong to reject Mr. Allison’s claim, and the judge had been entitled both to set its decision aside and to substitute his own.

Having set out all the relevant material – no doubt at somewhat excessive length - it is clear, in my judgment that this appeal succeeds. It does so, I think, for one very simple reason, and that is that the Recorder’s approach to the question he had to decide is seriously flawed. The question which he plainly should have asked himself, in my judgment, was whether or not the decision reached by Ms Anglin that Mr. Allison was not in priority need for accommodation under section 189(1) (c) of the Act was one which was properly open to her on the evidence before her. To put the matter in lawyer’s terms, the Recorder could only quash Ms Anglin’s decision if it was Wednesbury unreasonable – see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223, per Lord Greene MR in particular at 233- 4. In other words, was Ms Anglin’s decision one which no housing officer, properly directing her mind to the material before her could properly reach? If the decision was one which was properly open to her, then the overwhelming weight of authority is to the effect that the decision was one for her, and that there is no basis upon which the court could properly interfere with it, however, much the court may or may not agree with it.

In my judgment, the decision that Mr. Allison was not in priority need of accommodation under section 189(1) (c) of the Act was one which was properly open to Ms Anglin on the evidence. She was duty bound to weigh all the relevant evidence. She did so. She had to apply the Pereira test. She did so. Her first reference to it was immaculate: the second was criticised by the Recorder, but was found by him not to be material. She did not leave anything relevant out of account, or include in her consideration any material which was irrelevant. She was entitled to take into account the views of Dr Keen and to give them the weight she did. In short, her decision was not Wednesbury unreasonable, and the Recorder thus had no power to interfere with it. His decision, as a consequence, cannot stand.

Speaking for myself, I do not see this as a case which turns on the Recorder’s application of the Pereira test. The Recorder’s error, in my judgment, was to decide the case on his own perception of the facts, and his belief that Wandsworth’s decision was Wednesbury unreasonable. In his view, it was a question of Ms Anglin “fundamentally misunderstanding and misstating the medical evidence in important respects”. In my judgment he was plainly wrong so to find. In my judgment, the decision Ms Anglin reached was properly open to her on all the evidence available to her, including that of Dr. Keen.

Equally, although I have set out the result of the SPD, Ms Anglin was plainly entitled to decide the case on the medical evidence. The social worker who completed the SPD was not medically qualified, and it is a tribute to Ms Anglin’s thoroughness that there is a note on the file dated 30 January 2007 which records a telephone conversation between the social worker and Ms Anglin, initiated by the latter, in which the former stated that her report was based on very limited knowledge, and certainly no better than or different from the medical evidence on which Ms Anglin based her decision letter.

Having set out all the relevant material at such length, I do not think it necessary to explain in any greater detail why I take the view that the Recorder asked himself the wrong question. In the light of Shala, however, I need to say a word or two about Ms Anglin’s reliance on Dr. Keen’s evidence.

I agree with Mr. Lintott that it is a material weakness in the Recorder’s judgment that he makes no mention of Dr. Keen’s reports, and only refers to Dr. Keen obliquely in passing. We simply do not know what the Recorder thought of Dr. Keen’s contribution to the medical debate.

In my judgment, however, Shala can plainly be distinguished, and although I have looked at the authorities referred to in that case, I do not think it necessary to add to the length of this already overlong judgment by referring further to them. In my judgment, Mr. Lintott is correct to argue, as he does, that in the present case, Dr Keen simply commented on the medical evidence in order to enable the local authority to understand the medical issues and to evaluate for itself the evidence before it as to Mr. Allison’s medical condition. It would plainly not have been appropriate for Dr. Keen to examine Mr. Allison. In the instant case, Dr. Keen’s advice seems to me to be well founded in his medical expertise, and he was thus fully entitled to advise Wandsworth on the manner in which Mr. Allison’s medical difficulties would be likely to affect him. Ms Anglin was, similarly, entitled to give weight to Dr. Keen’s conclusions.

Mr. Lintott also referred us to an unreported and unsuccessful application for permission to appeal heard by Arden and Gage LJJ in a case called Harper v. Oxford City Council [2007] EWCA Civ 1169 in which Shala was relied on, and a reference to Dr. Keen’s evidence was made. I mean no disrespect to that constitution when I say that although the case confirms the correct approach, it does not advance it, and I do not think it necessary to make further reference to it.

In summary, therefore, I have no doubt that the Recorder’s approach was flawed; that he did not apply judicial review principles; that he substituted his own findings of fact for those properly open to Wandsworth, and that, for the reasons I have given his decision cannot stand.

I would, accordingly, allow the appeal, set aside the judge’s order and restore Wandsworth’s decision of 30 January 2007 that Mr Allison was not in priority need of housing under section 189(1)(c) of the Act.

I cannot leave this appeal without recording my regret at the death of the Recorder on 20 November 2007 at the early age of 65. Self-evidently, sentiment cannot play any part in the decision-making processes of this court particularly when it relates to a knowledge of, or an affection for, the judge whose decision is under appeal. Sentiment, of course, has played no part in my conclusions in this appeal. Nonetheless, having known the Recorder as a member of my former chambers, having been against him at the bar, and having heard him often as an advocate, I would like to associate myself fully with the generous tribute paid to him by Anthony Kirk QC in the March issue of the magazine Family Law([2008] Fam Law 275). It is, therefore, a matter of regret to me that my last contact with him should be in the role of appellate judge reversing one of his decisions; and I would like to think that, although he was at the time in remission from the cancer which ultimately took his life, the effects of that illness may have played some part in the decision which was the subject of this appeal.

I agree with the judgments both of Wall LJ set out above and of Arden LJ set out below. I also knew the recorder quite well on a professional basis; admired much of his work; and mourn his death.

I agree that this appeal must be allowed. The two main criticisms of the decision upheld by the recorder were in relation to the statements in the decision that Mr Allison's GP did not confirm (1) any increased risk of DVT due to homelessness or (2) a diagnosis of Raynaud's syndrome or disease.  Both these statements were in fact correct, although on the first point Dr Gomez had referred to an increased risk of recurrence of DVT if Mr Allison was without shelter.  However, the critical point was the only medication prescribed for Mr Allison was Warfarin, and that all the medical evidence was considered by Dr Keen.  In the opinion of Dr Keen, it would not be onerous for a homeless person to take Warfarin.    I consider that it was open to the reviewing officer in those circumstances to take the view that Mr Allison would have no difficulty as a homeless person in complying with the medication and further that there was no particular risk of recurrence, and accordingly that in those circumstances the Pereiratest was not satisfied. It follows that the recorder erred in law in making the order that he did.