London Borough of Wandsworth v Allison  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 It was made in downright odd circumstances, as the respondent had won the s.204 appeal but then had public funding withdrawn, for being out of the country, not long before the Court of Appeal heard Wandsworth’s appeal.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  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.