Tag Archive for 'pereira'

Addiction, relapse and priority need

Published
by
NL
on 17 October 2008
in Housing law
. 2 Comments

Simms v London Borough of Islington [2008] EWCA Civ 1083 is Court of Appeal case from a s.204 appeal.

The issue was vulnerability, the Pereira test, and the use of medical evidence.

Mr Simms was homeless,sleeping in his car, having lost his home after losing his job. He had an addiction to crack, asthma and suffered from depression and panic attacks. He applied to Islington as homeless, with support from Addaction Hackney, which pointed out the dangers of homelessness for his progress in drug treatment. His doctor first reported moderate depression and drug use.

At s.184 Islington found not vulnerable, following the recommendation of their medical advisor, who had not seen Mr Simms.

A further medicial report from Mr Simms doctor was submitted for the s.202 review. This report and the solicitor’s submissions highlighted the risk of relapse into drug use if Mr Simms was street homeless, the solicitors arguing that this was a clear injury or detriment.

Islington’s s.202 upheld the s.184, on the basis that his depression was not enough to make him vulnerable and that drug addiction was not a medical problem. The review letter mentioned the doctor’s second report. No further advice from the Council’s medical advisor was sought.

Mr Simms appealed, on the basis that:

(1) that the reviewing officer had not properly taken into account whether, having regard to the risk of a relapse, the appellant was vulnerable as a recovering drug addict for some “other special reason”;

(2) that the reviewing officer had not properly taken into account all the medical evidence bearing in mind that the council’s medical assessment adviser had neither seen the appellant nor consulted with his advisers. Moreover she had not been given the opportunity to consider Dr Anantha’s second report of 2nd May;

(3) that the reviewing officer had not properly considered how street homelessness would impact on the appellant’s psychiatric condition.

The s.204 appeal failed and was taken to the Court of Appeal on those grounds.

Held:

On the s.202 decision letter, the decision-maker had not overlooked the risk of relapse. The Council were well aware that Mr Simms was receiving assistance for his addiction and this had clearly been a factor in finding he was not Pereira vulnerable.

On the medical evidence, the decision-maker stated, correctly, that it was the LA’s duty to determine vulnerability. They were entitled to prefer the evidence of their medical adviser and there was no requirement in every case to refer any further medical reports to the advisor (Shala distinguished). The differences between the first and second report from Mr Simms’ doctor were not so great as to require a second opinion from the advisor. The review letter as whole did not give any reason to think that the decision-maker was not aware that the medical advisor had not seen Mr Simms or consulting his doctor.

The question of the impact on Mr Simms’ psychiatric condition was not arguable if the appeal otherwise failed. In any case, it was clearly considered by the review officer in the s.202 decision letter and she was entitled to decide it did not render Mr Simms vulnerable.

Overall, not a happy case, but evidence, if more were needed, that the Shala conditions on use of medical reports and advice is concerned with specialist advice and reports from those qualified in the field. Where it is clear that an adviser has not seen the homeless applicant, by itself this does not render their advice of no or limited value.

The issue of danger of relapse into addiction as vulnerability is not closed off. What was upheld here was that the decision-maker was entitled, on the evidence before her,to take the view that she did. The view that although a self induced drug alcohol problem was not a reason for vulnerability, the risk of relapse may be, suggested by Crossley v Westminster CC [2006] EWCA Civ 535, [2006] H.L.R. 26, remains open.

Shala revisited?

Published
by
NL
on 15 April 2008
in Housing law
. 36 Comments

London Borough of Wandsworth v Allison [2008] EWCA Civ 354 is a Court of Appeal judgment on an appeal from a s.204 Housing Act 1996 appeal. It was made in downright odd circumstances, as the respondent had won the s.204 appeal but then had public funding withdrawn, for being out of the country, not long before the Court of Appeal heard Wandsworth’s appeal. The appeal went ahead, with the respondent not present or represented. Instead the Court had Counsel for the respondent’s early skeleton and asked Counsel for the applicant to give it the arguments the respondent might have made (!!).

I’m not going into detail on the facts of the case - suffice to say it turned on the interpretation by the s.202 reviewer and the Recorder in the first instance court of medical evidence in relation to Deep Vein Thrombosis and Raynaud’s phenomenon/disease. The recorder at first instance had found that the reviewer had failed to adequately address the medical evidence.

However, as I have made clear, I hope, I am satisfied that the authority went completely wrong in their assessment of the evidence in relation to DVT and Raynaud’s. It was not simply a question of the authority making findings of fact on competing evidence, which is something they would be perfectly entitled to do. It was a question of fundamentally misunderstanding and misstating the medical evidence in important respects.

The Court of Appeal found that there was sufficient unclarity and range of views in the medical evidence that the question the recorder should have addressed himself to was whether the review officer’s decision was Wednesbury unreasonable:

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. (65)

In the Court of Appeal’s view of the available medical evidence, this was simply not open to the Recorder.

Secondly, the Recorder had not properly considered the Pereia test:

Mr. Lintott’s second point was that the Recorder himself had failed properly to apply the Pereira test (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. (50)

The Court was at pains to stress that a s.204 appeal is on a point of law and that the court cannot overturn the local authority’s findings of fact unless on strong Judicial Review style grounds (with the addition of irrationality and inadequacy of reasons). The Recorder had failed to properly consider whether the reviewer’s conclusion was one that she could properly come to on the evidence available to her.

Of broader significance is the address to Shala. Wandsworth’s medicial advisor was the ubiquitous Dr Keen of Now Medical - a GP. The skeleton of erstwhile Counsel for the Respondent had argued that

The proper role for Dr Keen [...] 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. (61)

The Court of Appeal sought to distinguish Shala.

Firstly, the Recorder had made no reference at all to Dr Keen’s reports in his judgment.

Secondly, in this instance, it appeared that Dr Keen had simply commented on the medical evidence (despite the ‘I make no housing recommendation’ repeated epilogue) in order to allow the Local Authority to understand the medical evidence.

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. (71)

Does this represent a significant change to Shala?

I don’t think so. I think it was clear in that judgment that Shala represented a conditional limit on the use of Now Medical (or any commissioned medical) reports by local authorities, but it did not mean that a Now Medical  (or council commissioned medical) report could not be taken as credible medical evidence without Dr Keen examining a patient or that any specialist medical evidence trumped a Now Medical report. In this case, comments on DVT and anti-coagulation medicine were considered to be within a GP’s expertise.

The Court distinguished Shala, and on entirely predictable grounds. Allison may represent a limit case on the application of Shala, but does not change it at all. A Now Medical report still cannot stand as expert medical evidence absent an examination of the patient, and local authorities must still consider carefully whether they are comparing like with like in considering Now Medical’s report against expert reports.