How did I miss this one in the Court of Appeal lists? I swear it didn’t appear in the Bailii list of recent judgments for 27 June 2007. Shala v Birmingham City Council  EWCA Civ 624
This is a very significant decision on Local Authorities’ use of medical advice in homeless decisions, particularly review decisions. The actual matter is too reliant on its facts to go into at length here, but the issue at stake was priority by vulnerability, primarily through mental health issues – depression and post-traumatic stress disorder. As anybody in the field knows, these are very difficult cases to challenge, and usually much turns on the reports from GPs and, where possible, specialist psychiatric doctors.
Here a review decision and negative County Court appeal were overturned. The key points were the response to submitted medical reports, and the reliance on the Council’s medical advisor in the s.202 review decision.
Significant points to note in the judgment:
The Council’s medical advisor was not a psychiatric specialist and lacked any specialist training in the field. Dr Keen is a GP who:
Authorities must not presume that in setting a report from a non-specialist against a qualified psychiatric specialist they are comparing like with like, Khelassi v Brent LBC  EWCA Civ 1825 (Para 22). Dr Keen’s advice was accepted as expert evidence in Hall v Wandsworth LBC  HLR 23, however, absent an examination of the applicant, the advice should not be taken as expert evidence of the applicant’s condition. (para 22).
If the medical advisor has not examined the applicant, the Authority must take this into account in making its decision. (Para 23) The authority and advisor may need to consider asking the applicant to consent to an examination, or if not, then consider a discussion between advisor and the applicant’s doctor(s), with applicant’s consent. (Para 23)
The Authority must recognise that the decision as to whether the statutory tests of need are met is theirs, not their medical advisors, and this requires a proper consideration of medical evidence submitted on behalf of the applicant where it differs from that of the medical advisor. (Para 16 & 20)
There is an interesting section on medical reports being directed towards the legal criterea for vulnerability, particularly the Pereira test. At para 21:
… 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.
As far as I can see, this suggests that Authorities’ medical advisors should not be requested to deliver opinions as verdicts on vulnerability under Pereira, while applicant’s advisors may need to direct the applicant’s doctors to what the issue at stake actually is.
The case also indicates a benchmark for what may constitute vulnerability by reason of depression and post-traumatic stress disorder. The terms used by the applicant’s doctors are worth noting.
The judgment is well worth reading in full. These notes are after a quick read-through, but I suspect there is much more to absorb. Well done to the Community Law Partnership (and Counsel E. Fitzpatrick) for pursuing this one. This could be very useful indeed.
[And there is another homeless CoA decision today, a note on Denton v Southwark to come tomorrow]