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Shala v Birmingham City Council

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 [2007] 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:

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. (Para 18).

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 [2006] EWCA Civ 1825 (Para 22). Dr Keen’s advice was accepted as expert evidence in Hall v Wandsworth LBC [2005] 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]

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

30 Comments

  1. Mike McIlvaney

    This was a marathon of a case which started with a telephone application to a High Court judge when Mr and Mrs Shala presented themselves to us as street homeless some two years ago. The judgment of is well worth a read.

    Hopefully the case WILL set a benchmark for the type of situation that may be capable of satisfying the Pereira test (which I was beginning to think meant having no arms and legs)

    When dealing with persons arguably in priority need by reason of vulnerability the following issues may be worth thinking about in addition.

    1. Where an authority uses its own internal medical adviser or an external GP to assist in the assessment of vulnerability, it will be worthwhile obtaining, if possible, and funding permitting, more specialist advice.
    New medical evidence should always be referred back to the authority’s adviser.

    2.Instruct the medical expert to address specifically your client’s condition in relation to the Pereira test. The adviser will need to set the test out.

    3.If a GP used by the authority (in Shala, Dr Keen of NowMedical) disagrees with a more specialist professional then in the absence of examination they should consult the specialist and the latter should be told of this possibiliy.

    4.There should be an agreed minute of any such discussion

    5.The level of medication prescribed is not necessarily indicative of severity of illness

    5.just because a review decision is long and detailed and has the appearance of being thorough it does not follow that the decision is lawful and a county court judge may need reminding of this. The Court of Appeal held that even had there been no patent error in the assessment of the medical evidence it would have found that the (lengthy) decision letter “displayed a want of fair mindedness” (whereas the county court Judge had found it to be commendable).

    6. The Court found that an explanatory witness statement provided by the decision maker during the course of the s204 Appeal was inadmissible- the decision letter is intended to “speak for itself”. This may be useful.

    7. It will be worth assessing whether any findings or reasoning provided by the review officer might be said to amount to amount to medical input.

    Mike McIvaney, The Community Law Partnership.

    Reply
  2. contact

    Many thanks, Mike. These are very useful comments indeed. And congratulations on the first helpful homeless appeal judgment for a long time.

    Reply
  3. Mike McIlvaney

    Glad to have found your excellent and informative site which for us still engaged in housing law is a great point of reference. As for our website, that’s a work in progress, and has been for some years!

    Reply
  4. Geoff

    You have got to love Birmingham!

    My sources there have told me all is not well and have “off the record” pointed out that following the OMAR case the ‘review manager’ involved disappeared and following the SHALA case the ‘review officer’ involved also disappeared. Draw from that what you may but where have these people gone?

    Well done Community Law Partnership and those posters for some excellent challenges!

    Reply
  5. Geoff

    Correction to the above posting: Aweys not Omar, that will teach me to read over before posting.

    Excellent blog by the way, certainly an interesting read for us involved in challenging the LA on such decisions. Keep up the good work!

    Reply
  6. contact

    Thanks Geoff, and welcome.

    Interesting gossip, but I’m rather more astonished that a) Aweys clearly reflected a broader policy decision at Brum, surely not the actions of a sole review manager, and b) Birmingham Legal either didn’t advise or were ignored on settling the Aweys cases.

    I can see how Shala would be taken by Brum as a defensible decision, and the s.202 decision letter sounded little different to many I’ve seen. So disposing of the review officer looks like an exercise in blame dumping if that is what has happened.

    Reply
  7. frank

    I consider myself a victim of the oft-mentioned Dr. Keen, as he has negatively judged on an explicit diagnosis and urgent recommendation by one of the top psychiatrists in the country.

    At present I am on the Ealing Council Housing Allocations Locata Scheme List in Band D.

    I am not technically homeless, but my housing situation is having a major impact on my mental and physical health. All in all, the council have received a G.P. diagnosis/recommendation and three psychiatrist diagnoses/recommendations – all clearly stating that rehousing is essential for my health to improve, central to my treatment and absolutely necessary for me to regain social functionality.

    The already mentioned top psychiatrist stated urgently to Housing Allocations that it was likely that I might become suicidal if my situation does not improve.

    As I am the main carer for two disabled people, my ability to continue in a caring and care-administration role depends on having social housing near the persons I am caring for.

    Locata guidelines clearly state that Health/Mental Health Issues and also Social Need and factors such as the Effects on the Provision of Care, must be taken into account where correct banding (A,B,C,D) is concerned.

    Housing Allocations and Dr. Keen simply ignore the relevant guidelines.

    I have applied for review to the Local Government Ombudsman, however, a case worker is blocking the consideration of my claim, effectively verbatim quoting Housing Allocations, particularly with the phrase “adequately housed”

    I contend that the practice of refusing applicants any consideration of their health, medical and social needs, particularly when backed up by doctors and specialists – and preferentially using the “opinion” of a non-specialized G.P. who has never seen or spoken to the applicant – constitutes gross negligence.

    The statement of the fact that housing is in short supply and that there are families who need to be rehoused, both arguments which have been put before me, is irrelevant when it comes to banding an applicant correctly. Obviously I can only apply for properties that are suitable for single persons and I am certainly not demanding instant rehousing – just a correct banding according to the law and the Locata guidelines.

    I intend to pursue this matter to a positive conclusion – through the courts if necessary – and then intend to make sure such a conclusion can quickly benefit others in my position.

    I would be grateful for any suggestions or help in this matter.

    Thanks,

    Frank

    Reply
  8. contact

    Frank,

    I can’t give individual advice on this blog, and in any case, I don’t think anyone could advise without a careful consideration of the documents and correspondence. The operation of allocations policy is a complex and difficult area.

    There are good housing solicitors in London. If you are eligible for legal aid, so much the cheaper. Try the ‘find a legal aid legal adviser’ link above and search for a housing specialist.

    By the way, I doubt that an Ombudsman’s investigation can be ‘blocked’ by a case worker. The Ombudsman tends to be very unimpressed by attempts to delay or not answer an investigation.

    Local Authorities’ use of Now Medical is certainly an issue. Hopefully Shala will make a difference to the way they tend to use Dr Keen’s opinions.

    Reply
  9. Tim Scott

    I have considerable working knowledge of the Locata scheme, and Frank may be prudent to study their actual policy on medical priority, which is very carefully defined.
    Sadly, medical priority under Locata doesn’t apply if rehousing would aid treatment or improve a condition as Frank implies; instead it applies solely if the current housing is having a direct adverse effect on the resident (a subtle but important difference).
    Frank’s case appears complex with medical, social and care-providing issues (to be fair to Dr Keen/NowMedical their role is only on the medical side of a case). Ealing has a “welfare committee” which meets to consider exactly such multi-factorial cases as Franks – has his case been considered there?

    Reply
  10. contact

    Tim,

    I hope Frank sees this. Most of the allocation schemes that I butt heads with also have solely a ‘direct adverse effect’ style of provision in regard to medical priority or banding. But Frank does suggest a deleterious effect of current housing as well as suggesting new housing is required for improvement.

    Cumulative categories of need may also be an issue.

    Welcome to Nearly Legal, by the way.

    Reply
  11. Tim Scott

    Thank you. On the subject of Now Medical, they get some stick. But to those of us on the inside, it is really helpful to have someone prepared to explain why everyone on a Ventolin inhaler won’t necessarily die if they walk up stairs, and to act as a balance to the wildly advocating GP letters we get sometimes.

    Also, your side don’t see all the cases they say yes to, naturally, cos they don’t need to appeal – all the insulin-diabetics, the sickle cell, the anorexics and the like. I’d even go so far to say that they are a little soft in some areas of casework I’ve been involved in – they recommend central heating, gardens and extra bedrooms on many childhood cases eg. autism.

    Reply
  12. contact

    Tim, you seem like a decent sort of chap for a homeless officer, but you have just set up the problem with Now Medical and LA’s use of medical advisors.

    As Shala makes clear, the job of the LA medical advisor is ONLY to “furnish material within their professional competence which addresses issues which the local authority has to decide.” It is NOT to ‘act as a balance’ to the applicant’s doctors. Note that where there is a difference of opinion, Now Medical has not examined the applicant and can ONLY offer general comments. The homeless officer’s job is to make the decision on the basis of the information and inquiries they have made, and the Now Medical report is one element that has to be considered alongside the others. It is not the definitive guidance you suggest – ‘someone prepared to explain why…’

    Given Now Medical’s track record of being willing to make apparently definitive sounding comment on areas that Dr Keen has no specialist competence in (Shala being only the most visible instance), I would suggest that any homeless officer or review officer be cautious on relying on a Now Medical report where it clashes badly with a GP’s report, let alone that of a specialist – where Shala gives guidance.

    As for the ‘cases they say yes to’, Ealing must differ quite significantly from the London Boroughs that I usually deal with. ‘Recommendations’ for gardens, etc. in a choice based letting scheme are probably irrelevant, as far as I can see.

    This is not aimed at you personally, of course, and it is very interesting to have someone from the other side of the tracks commenting here – you are welcome.

    Reply
  13. Tim Scott

    You patronising git! I’ll let you off, you know not of what you speak.

    Let me give you an example. We work in inner-city London with a large proportion of Afro-Caribbean people. We have no available social housing; people with severe medical problems are in B&B, children with CP in hostels etc.etc.

    Pre-NowMedical, a GP only had to write “sickle cell, needs housing” on his letter, and we would accept them as vulnerable and hence in priority need. Dr Keen came along and taught us that of everyone called “sickle cell”, only a proportion have any actual illness; a fair number have sickle cell trait, a genetic carrier status of no clinical significance whatsoever.

    Surely even you, in your pampered, monied, detached middle-class world would agree that it is unfair on everyone else in the housing queue if we gave out social housing erroneously in that way. It’s a matter of fairness, of utility. I could go on…

    Reply
  14. contact

    Tim, whoa.

    I know exactly of what I speak, for starters. Try some other posts here. Housing solicitors are acutely aware of the pressures on LA housing stock.

    I was careful to say this wasn’t aimed at you personally – because it genuinely wasn’t. I was also careful only to point out what Shala meant about the use of Now Medical (and other LA medical advisors). You said that homeless officers were using Now Medical advice as a balance to, quote, ‘wildly advocating GP letters’. Shala is a Court of Appeal judgment that sets out the approach that LA homeless officers are to take to medical advisor reports under the law. All I did was summarise Shala’s terms.

    Now, if you want to take exception to that, I suggest you take it up with the Court of Appeal, not me. My job is to make sure that the LA act lawfully. ‘Surely even you’ would agree that the local authority has to make decisions according to the law?

    You are now saying that Now Medical helped to teach homeless officers the difference between sickle cell carriers and sickle cell sufferers. Fine, if that is it. That is not what you said before. In any case, whether your LA gave adequate training on medical issues, or had retained adequate medical advice before Now Medical is the LA’s problem. It does not make Now Medical saviours or necessarily right in their reports.

    By the way, I think you’d be surprised that applicant’s solicitors also frequently get annoyed with GP’s ‘reports’ that don’t actually address the point or answer the questions asked – yes, GPs often just say ‘x is vulnerable’ when we and indeed you really, really need details.

    As for the pampered, middle class etc., I have no intention of getting into a prolier than thou competition, but you might well lose. Stereotypical assumptions are dangerous, aren’t they?

    You are genuinely welcome here, though, believe it or not.

    Reply
  15. Tim Scott

    Point taken, I retreat with a draw.

    PS you could do with some help with apostrophies – put them after the final “s” on plural nouns to indicate possession (eg. applicants’, GPs’).

    Reply
  16. contact

    Tom,

    GP’s reports = report from an individual GP, not from GPs as a collective or group noun or in general. The problem is not with all GPs’ reports, but some individual reports. In the context of that sentence, I believe I apostrophised correctly.

    “Applicant’s”, hmm. I’ll give you that one to the extent that it is awkward, and unclear to the extent that it reads as if each applicant had plural solicitors. But then we tend to refer to ourselves in the plural in a formal context; (‘we’, ‘instructing solicitors’ – the identity is the firm, so ‘solicitors’ plural).

    Still, what is the alternative, given that ‘solicitors’ is the subject of the sentence?

    Your version – Applicants’ solicitors – nope, doesn’t work. It gives plural solicitors for plural clients, which is messy and unspecific. Applicants’ solicitor – no, for obvious reasons. I was after ‘the solicitors who individually act for individual applicants’, so perhaps “the solicitor acting for an applicant is often…” should replace the offending part, (but that is also a bit ugly and inaccurate, given that it may not be a singular solcitor). I think my apostrophising above was right but not satisfactory.

    Draw? I’m a litigator, I know not the meaning of this word ‘draw’, (in this context, at least).

    I stand by my comments on other London LAs being, shall we say. less accommodating on the ‘cases they say yes to’ than your report on what happens at Ealing. I also stand by my comment on ‘recommendations’ being neither here nor there in a bog-standard Choice Based Letting Scheme, unless Ealing’s Allocation Scheme, which I freely admit that I don’t know, is really quite out of the usual – and I have seen a fair few CBL Allocation Schemes.

    Reply
  17. contact

    Tim,

    I’ve just re-read the exchange this morning. You are right, that comment did sound patronising – wasn’t meant to but it did. I can only plead a long and difficult day and apologise. I’m imposing a ‘no posting while wound up’ rule on myself.

    Reply
  18. tim scott

    So the Court of Appeal seems to have now substantially overturned Shala. See Wandsworth -v- Allison EWCA Civ 354.

    Come on Nearly Legal, how did you miss that one?!

    Reply
  19. Nearly Legal

    Miss it? The damn thing was only released on Bailii today. I was reading it on my phone on the train home. What do you want, blood?

    As to overturning Shala – not so sure, still reading the judgment – post to follow v. shortly.[now up]

    Reply
  20. Housinganger

    I don’t think it has overturned it, I don’t think (from a very very quick read) that the medical evidence was strong enough from the chaps own medical advisors so that Dr Keen wasn’t being that unreasonable in his ‘impartial’ advice. Plus the guys Legal Aid ran out it seems.

    Reply
  21. Housinganger

    Hope I won’t have posted twice on this but not sure I submitted the first post!

    From a very very quick reading I don’t think Shala has been substantially overturned at all. I don’t think from a very speedy reading that the chaps own medical evidence was THAT strong. Therefore the LA taking the views of the ever so ‘impartial’ role of Dr Keen and Non-Priority medical that he wasn’t in priority wasn’t unreasonable in the Wednesbury sense. They do seem to have shown that they considered (as much as LA’s ever really consider) the other evidence and gave not Wednesbury unreasonable reasons for dismissing it.

    Reply
  22. Nearly Legal

    Sorry Housinganger, for some unexplained reason your comments are now heading into my spam filter, so don’t appear at once. Nothing to do with me…

    Case comment on Allison now up. I agree with you.

    Reply
  23. frank

    Thanks for the various comments left to my initial posting from February. Sorry for not responding earlier.

    I was particularly intrigued by Tim Scott’s comments. I presume he is involved in one of the London council’s housing allocation department (?)

    He is obviously quite defensive about the council’s and NowMedical’s roles and behaviour in respect of the processes they have in place to determine priority.

    We all must not forget that much (if not everything) of what is approved or disallowed depends on the decisions of individual operatives in HA. I seem to have been particularly unlucky.

    I do worry about Tim’s comments in as much as they reflect the somewhat polemik and blinkered attitude that some civil servants et al. have in this country. Tim, who claims to have considerable working knowledge of the Locata scheme, uses a hypocritical argument (a falsification of cause and effect), to claim that the possible improvement of a health issue cannot be synonymous (or contiguous) with the removal of the cause of the health issue. Pure logic states that if there is a unique causal relationship between to facts (i.e. A causes B), then the removal of the cause (not A) leads to change in the causality. Put in its extreme form: If not A, then not B).

    I have encountered this inability to employ unfalsified logic (or even reason) throughout my dealings with the council. It certainly does not seem to be a job requirement at Housing Allocations to be intellectually competent. I suppose, “if you pay peanuts . . .”

    I find Tim’s attitude and grandeur throughout this blog extremely annoying. His naïve praise of NowMedical, a company that issues recommendations by it’s quick “fax” service for GBP 30 and has rejected something like 97% of priority claims in the Borough of Lambeth, belies his disdain for the supplicants.

    It is clear, and obvious to anyone in post-Thatcher Britain, that social housing has been systematically dismantled and there are therefore far more applicants than available housing.

    Unfortunatly, the creative “brains” in HA have evidently chosen to resolve the problem by placing as many applicants as possible (even if by neglectful behaviour and falsification of facts) in the worthless Band D, which was only created to pacify (or keep off their backs) those who think they may be entitled to housing. This should be considered disingenuous, if not a scam. People are being deliberatly misled about their chances of receiving help with housing, their time and energy, and their hopes, wasted.

    There will have to be a massive shake-up of the current system. Dishonest and unhelpful civil servants must be dismissed and held personally (and financially) responsible. Councils and collaborating Ombudsmen should be fined substantially. The role of Ombudsmen in the regulation (or rather “non-regulation”) of governance is particularly shameful. Medical advisers must be investigated as to their qualifications and the statistical rates of their rejection of supplicants. They too should feel consequences for their lack of impartiality and for their disregard of their peers, who are often trying to earnestly help their patients. Generally, many should feel deeply ashamed.

    I’m spent!

    Frank

    P.S.
    This to Tim: If you’re going to mock peoples’ use of apostrophes, please don’t reveal your own grammatical laziness by employing the non-word “cos” in place of “because”.

    I’d also love to know why you think the authorities a “little soft” for recommending central heaing for children with autism. Do you live without central heating? Perhaps you recommend the integration of Social-Darwinism into the Council’s guidelines. Sad.

    Reply
  24. sophie

    Can I assume from reading this thread that if a GP has submitted letters to the council housing medical advisor saying that she is deeply concerned at the level of distress suffered by a person by their current accommodation (neighbours from hell – noise and asb that cannot concretely be proved however) and that some chronic conditions suffered are being exacerbated by stress – and a consultant psychiatrist has said the current accommodation is haveing a profound, detrimental impact on the persons mental state….and they are suffering from anxiety, depression and panic disorder with the home as the immediate stressor and cause….and there is the possible development of a post traumtic stress disorder through the psychological impact of their current home – and the person is intimidated and had direct threats – and a woman on her own……..and all of this information has been ignored and disregarded by the council, they are behaving illegally…..should the ombudsman be consulted. The housing needs officer seems to have taken it upon hersoelf to extract symptoms from the doctors letters that she deems fit to produce to the medical advisor and has not included any of the above as she deems them irrellevant.

    Reply
    • NL

      Sophie, we can’t offer advice on individual’s cases through the blog, I’m afraid. In any event, it sounds like you are concerned about a transfer application rather than a homeless application and these are not the same thing. I strongly suggest you get advice from a specialist housing advisor. You can find a link to search for a housing advicor at the top right of the page.

      Reply
      • SOPHIE

        Many thanks for your reply. My housing association do not do transfers…..I have been placed back on the housing register with my local council but in band C which equates to about 15 years on the register – if indeeed I am ever rehoused. The letters to the council`s medical advisor were in the hope of getting me some priority to get out of here but it all seems to have been dismissed and the housing assocation have been of no help with the two flats above me – drug addicts, criminal records, etc. and it is almost as if they condone their behaviour – since complaining to the authorities I have been victimised….This has all been a real eye opener and shock to my system – I thought this kind of thing was only ever seen on Panorama…..horrendous……and the lack of help in such situations is amazing…

        Many thanks for the advice – I wasnt aware of there being housing advisors….so thank you.

        Reply
  25. Rene

    Hiya understand that you can’t give advice on individual in issues but I was wondering on the whole if you could give me some advice on hold if a local council requested doctors evidence from peoples doctors asking doctors if their patients mental health may impede there ability to manage there affairs the doctor replied yes it may impede there ability to manage there affairs xhould thst person be found intentionally homless also what if they never applied the information to the application after asking for it then receiving and not using in list of consideration ??

    Reply
    • Giles Peaker

      You need to get proper advice. This is too complicated to answer here, and any answer would depend heavily on all the facts in the case.

      Reply
  26. Rene

    Thank you Giles most apriecisted could u possibly advise in where I cud get legal aid with this as I’ve been granted an out of time apeal I think with my health I would struggle to represent myself thanks again.

    Reply
    • Giles Peaker

      There are links in the footer at the bottom of the page, under ‘Find a legal aid housing advisor’. Good luck.

      Reply

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