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15/04/2008

Shala revisited?

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 It was made in downright odd circumstances, as the respondent had won the s.204 appeal but then had public funding withdrawn, for being out of the country, not long before the Court of Appeal heard Wandsworth’s appeal.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

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.

38 Comments

  1. tim scott

    Ha ha! Well done for getting to this case so quickly, but HAVING CAKE and EATING IT spring to mind.

    So let’s get this straight.

    in Shala, Dr Keen / Now Medical gave advice without examination and contrary to that of a specialist, and the Court of Appeal were critical.

    In Allison, Dr Keen/Now Medical gave advice without examination and contrary to that of two specialists, and the Court of Appeal described that advice as “well-founded”.

    These judgements seem diametrically opposed. If Allison is to be believed, then your comment that “A Now Medical report still cannot stand as expert medical evidence absent an examination of the patient” seems, I’m sorry to say, amateur and frankly, partisan. Over to you.

    Reply
  2. Nearly Legal

    Heh.

    Ok, it all hinges on the Shala point that the job of a local authority medical advisor is “to understand the medical issues and to evaluate the medical issues before it”. In the review level of Shala, Dr Keen’s advice, which is that of a bog-standard GP, was preferred over that of experts in a field in which Dr Keen had no, repeat no, specialist skill or experience. It was that preference that the Court of Appeal rejected in Shala.

    In Allison, Dr Keen’s evidence, such as it played a part, was on the mechanics of medication for a condition that it would be expected that a GP would encounter and be able to treat – so his evidence on the mechanics of managing a Warfarin prescription – ‘one or two pills daily’ – was entirely within the bounds of clarifying the medical issues as far as the Court was concerned.

    As for cake, eaten or not, I think if you go back to my post on Shala, you will not see anything different to what I have written here. I never even suggested that Shala meant that a Now Medical report was invalid per se.

    The Court in this case distinguished Shala, they did not reject, overturn or criticise it. It is still the case that any review officer who wishes to take Dr Keen’s pure opinion evidence as trumping that of an expert in a field in which he (Dr Keen) has no expertise is acting unlawfully, per Shala.

    Now why are you so triumphalist?

    Reply
  3. tim scott

    This is the legal world – and you – getting yourself in a muddle. So you have decided that GPs CAN advise on deep vein thrombosis and Raynaud’s disease, but CAN’T on post-traumatic stress disorder? On what do you base this?

    So is the Court of Appeal going to generate a list of conditions a GP can advise on, and ones they can’t? Of course not.

    Reply
  4. housinganger

    I think you miss the point Tim. If the chaps GP had said something like

    ‘I’ve been treating him for 5 years and his Raynaud’s disease has been diagnosed. If Mr Allison is street homeless then the exposure to the elements that this brings means his Raynaud’s disease WILL cause his fingers and toes to drop off. Further to this no medication will assist because you cannot treat this condition you can only try and prevent its effects. Dr Bob at X hospital can confirm this’

    and then Dr Keen had said

    ‘Mr Allison is not in priority need as he only needs a piece of cake and a can of Tango to treat his Raynaud’s’

    then should Wandsworth have come to a non priority decision taking the recommendations of Dr Keen it would be Wednesbury unreasonable.

    In this case Mr Allison’s 184 decision letter shows that the officer (at least according to the letter) took everything on board and considered Mr Keen’s recommendation (which wasn’t a diagnosis and didn’t really conflict with Mr Allison’s GP’s letter). As a result the decision was not Wednesbury unreasonable.

    Lady Justice Arden sums it up the best in the last clause.

    Being a cynic I think that a Local Authorities discretion in cases like this means a client is doomed from the start. But with a good decision letter showing (supposedly) that the LA has considered all the facts of the case then their decision is not Wednesbury unreasonable.

    Reply
  5. Nearly Legal

    Tim,
    I’d largely agree with housinganger. Let us be clear, the Court of Appeal in Allison expressly adopted the description of the role of the housing authority’s medical advisor set out in Shala. The judgment quotes Shala (para 60 of Allison)

    “His [Dr Keen’s]advice has the function of enabling the authority to understand the medical issues and to evaluate for itself the expert evidence placed before it. Absent an examination of the patient, his advice cannot itself ordinarily constitute expert evidence of the applicant’s condition.”

    And then, in the reasons for allowing this appeal (para 71):

    “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. ”

    So, the Court distinguished Shala in part on the basis that in this instance Dr Keen (and the housing authority’s use of his advice) was in accord with the way Shala said it should be used.

    In that regard, Allison actually confirms that Shala and the terms set out in Shala are those that govern the use of Dr Keen’s (or any medical advisor’s) advice.

    If you read the judgment, the issue in this case was not the diagnosis of DVT – that was not at stake – it was whether homelessness would affect the treatment of the condition. In that respect, Dr Keen’s advice is clearly within his competence (and does not contradict the specifically medical advice of Allison’s doctors). One might disagree with his view, but it is clearly a view that the reviewing officer was not unreasonable in taking into account.

    As ever, the issue is the balancing act done by the homeless officer. The point of Shala was that they have to weigh the advice and information received, including the relative expertise of the source and their knowledge of the applicant. This case confirms that. It simply finds that the judge in the first appeal had not properly addressed himself to how that exercise should be carried out.

    This is not an overturning of Shala, quite the reverse.

    Reply
  6. Kath

    I must agree, whilst it pains me to agree with a discussion involving the self righteous community law partnership. The Shala judgment had a fair point and so does this one, I don’t think it overrules Shala at all, in fact it was a useful judgement on clarifying the issue.

    I thereafore have to agree with nearlylegal the other posters over Tim.

    Reply
  7. K

    No. Dr. Keen from Nowmedical stitches up vulnerable tenants in order to give an outcome beneficial to housing associations and local authorities.

    This is why they [the housing providers] are all running to him and using his [Dr. Keen] “medical services” to procure “The right medical opinion”.
    Of all the GPs in the country why go to Dr. Keen?

    The vulnerable tenant I represented in the Court had her GPs letters and Consultants letters sent by the Claimant housing entity seeking possession of her home to Dr. Keen.

    Dr. Keen dilutes the letters to purport that a disabled person is not as disabled as diagnosed to make it easier for the local authority to persuade the court to grant a possession order on the basis that the disabled person is not as disabled as they really are. This morphing of GPs letters was of course done without the consent of the Defendant.

    Dr. Keen from nowmedical is [Edited by Nearly Legal, for reasons given below] interfering with the disability of a vulnerable defendant. He charges circa £30.00 for a “medical letter”.

    Reply
  8. Nearly Legal

    Kath, I don’t know what your beef is with the CLP and honestly, I don’t want to know, because I don’t think it has any part to play on this blog.

    But I’m glad you agree with my take on Allison. I honestly don’t see how any other conclusion can be taken from the judgment. Tim, as a homeless officer, must reach his own conclusions, but I suspect he will find his interpretation in trouble on an s.204 appeal.

    K. A lot of people, myself included, who run homeless reviews and appeals have trouble with Dr Keen’s reports. I think it is safe to say that I am no fan of Now Medical.

    However, once the tenant’s medical reports have been submitted as evidence in a possession case, the landlord is legitimately able to obtain a report on the evidence. That this was so should have been explained to the tenant before the GP’s letters were submitted in evidence. If you, as the tenant’s ‘representative’, didn’t explain that to her before submitting the GP’s letters, then I am afraid that it is your fault that she didn’t realise that she had given consent.

    As for ‘diluting the letters’, well yes, I’m sure that is what happened. But this is the nature of our adversarial court system. You put in evidence and the other side try to discredit or belittle it. If this comes as a surprise or a shock to you, I would be worried that you are apparently ‘representing’ people at court.

    Reply
  9. K

    Yes quite honestly it does come as a surprise to me. To undermine someone’s evidence [especially the evidence of a disabled person] is sheer loonacy. Having acted for clients in other jurisdictions I can safely say what Dr. Keen is doing here in the United Kingdom is criminal.

    Thank goodness that the United Kingdom as a full member of the European Union must be dictated to by the European Court of Human Rights in Strasbourg. There in the courts of Strasbourg, they would not tolerate this arbitrary, unfounded and invasive practice of undermining evidence [as the medical evidence that Dr. Keen is purporting to do]

    Either a) evidence such as medical evidence is admissable evidence or it is not.

    The practice of undermining of evidence is despotic and has no place in a civilised legal system.

    Reply
  10. Nearly Legal

    K,
    Strasbourg does and will allow an adversarial legal system. An adversarial legal system inevitably involves disputation and challenging of evidence.

    You are going to have to live with it.

    Reply
  11. K

    Either evidence as evidence is admissable evidence or it is not. (it cannot be both)

    There is no merit in the attempted diminution of admissable evidence through an interference of attempting to undermine evidence by perceiving a misconceived practice as a mechanism emanating from “an adverserial legal system” when evidence is already accepted as admissable evidence.

    You might as well submit no evidence at all.

    As for your comment on living with it;

    Well, living with it [passive] is one thing challenging it [active] is another.

    Reply
  12. Mark P

    To have a beef with Dr Keen is perhaps misguided. Sure his reports often appear sympathetic to the view of the local authority. But surely, in these days of severe housing shortage, it is only to be expected that authorities consult experts, and then go back to an expert that they have found useful in the past. Don’t solicitors, when pursuing a claim for disrepair for example, instruct experts that understand how to present facts and analysis in a manner sympathetic to their client? If they didn’t they would surely be at risk of losing business. To pretend otherwise is surely naïve.

    Of course, it is preferable if the ‘expert’ does in fact have an appropriate specialism, comparable to that the case at hand.

    I admire Dr Keen, in the sense that he has cornered a lucrative niche in the market (hmmm, perhaps ‘envy’ is the word I’m looking for rather than ‘admire’, given the money he’s probably making). If Dr K was to retire tomorrow I would be very surprised if a similar outfit did not spring up in Now Medical’s place.

    The fact that Dr K’s services are used repeatedly by local authorities is perhaps an indictment of how much applicants’ GP’s seek to charge when approaches are made of them, and how slowly they often respond to requests for information, even when explicitly authorised to disclose. In my experience it is the norm for GPs to request excessive fees, merely to produce a two paragraph letter months later which fails to actually answer the actual questions posed. This is a problem experienced by both housing officers and advisers. Sure doctors are very busy (aren’t we all in the public sector), but many appear more concerned with supplementing their already considerable income than with the interests of their patients.

    Advisors would also do well to remember that they would ordinarily not see those Now Medical reports making positive recommendations, since they usually lead to a positive decision.

    My beef is with housing officers, rather than Dr Keen. Or rather those officers who appear unwilling to make a balanced decision, taking proper account of the facts before them, don’t recognise that the balancing exercise requires an open minded consideration of the weight to be given to the competing facts before them, and assume that a letter from Now Medical is always a passport to an adverse decision. But that surely was why Shala was such a breath of fresh air.

    Reply
    • John O'

      Dr keen’s expertise is in obstetrics, so how does this qualify him as an expert in this case?

      Reply
      • NL

        He didn’t have to be an expert in this case, that was the point. The medical advice was within the competence of an ordinary GP.

        Reply
  13. tim scott

    Nearly Legal,
    I think you should remove the reference made on your website to Nazi Germany above, as

    1 it is not in any way relevant legal comment
    2 it is offensive and arguably libellous
    3 it demeans the otherwise high level of debate on this website
    4 it is written behind a veil of anonymity, unlike others who contribute to this website
    5 it risks others not wishing to contribute, and I for one will not continue to do so if my name continues to appear on the same page

    Reply
  14. Nearly Legal

    Tim,
    The reference was, of course, completely ludicrous. After some consideration, I let it pass for that reason – it reflected on the maker of the statement rather than its object. Following your objection, I have reconsidered and decided that your points at 1 to 3 outweigh any light the reference might shed on the commenter and his/her argument. So I have removed the reference.

    Reply
  15. tim scott

    Well done.

    Reply
  16. Ben

    Interesting debate. I agree with Mark P. We have to be realistic about the current climate, where the emphasis is on homelessness prevention. I train homelessness law for the CIH, shelter etc and am finding, on my jaunts around the country working with front line homelessness advisers, that Dr Keen is rapidly earning himself the AKA ‘Dr No’, because he can always be relied upon for a negative decision.

    Speaking as an ex-homelessness case worker, it was never so much the case, as Mark suggests, that doctor’s reports were too expensive but rather they never gave information in the Pereira form that advisers really needed.

    In Andy Gale’s old Harrow Guide to Good practice (Which later and more officially became the DCLG’s Prevention Guide) he suggested that investigation staff could find useful medical information on the internet.

    I did a short stint as head of homelessness for a West Country authority who shall remain nameless, where we routinely made decision on medical priority by looking in Mimms Drug Directory for guidance. A typical interview would run as follows:-
    “So you claim to be depressed. What drugs are you on”?
    “Seroxat, 25mg”.
    The adviser would then turn to Mimms and see “Seroxat, for depression. Dosage 25mg – 250mg”
    The adviser then tells the applicant that they are not vulnerable because they are on the lowest dose.

    Arbitrary in the extreme but even Now Medical is a step forward of sorts, if you have to make adverse decisions.

    Reply
  17. tim scott

    Ben,
    you never see the cases NowMedical say yes to, because of course they don’t get contested and don’t need the help of housing advisers, Shelter and lawyers.

    I do reviews for a big London local authority, who are part of a group of authorities who use NowMedical. I can categorically state they say yes to loads of cases – we discuss them at our group meetings. Indeed there are enough for it to be not uncommon of for us to override a NowMedical “yes”.

    FYI, our view is that NowMedical’s psychiatrist is particularly adept in this area. I think he is a excellent refinement at NowMedical, and we send many cases to him direct.

    Reply
  18. Nearly Legal

    Ben: There are undoubtedly a number of factors at play. I would certainly agree about the frustrations of getting anything useful or timely out of the client’s GP. But I would be less concerned about Now medical reports if they addressed applicants’ conditions as falling within a scale rather than consistently emphasising the lowest impact form of the condition. This is what he did in Shala, after all.

    Tim: Sorry – your comment was caught in the spam filter – don’t know why. Interesting on the ‘yes’ reports. Obviously, as you say, we wouldn’t see them, unless the file was requested a later point for some reason – a suitability of accommodation issue say. I’ve never seen one in those circumstances, though. In your experience, what proportion of the reports would you say were favourable? And what proportion of those would be what one might call borderline, or judgement call cases? I’m genuinely interested. My cycnical side presumes the psychiatrist was taken on by Now Medical after Shala?

    It is also interesting that the discussion of both Shala and this case turned into discussion about Now Medical. The cases, after all, are about the use of medical advice by the decision maker, which happened to be Dr Keen in each instance.

    Of course, as I’ve agreed with Tim before, there is obviously a need for efficient provision of medical advice to homeless officers and most importantly a need for them to fulfill their duty to balance the material before them, which includes weighing comparative authority.

    By the way, I’ve deleted a comment here that only had abuse directed at Dr Keen in it. Personal abuse about named individuals isn’t going to stay up on the blog, not unless I am doing the abusing…

    Reply
  19. ben

    Tim.
    I agree. Now Medical’s ‘Yes’ decisions by definition dont make it into the the general public forum. But I am also curious, along with Nearly Legal, about the percentage of ‘Yes’ decisions comapered to ‘No’. Do you have any figures on this?

    My post is based solely on anecdotal stuff I pick up from case workers in the field. As a trainer I am somewhat out of the immediate loop these days, as it were. The main concern that I hear from course particpants is that Now Medical can provide some form of much needed expert back-up in adverse decisions. Despite being the guiding light on vulnerability Pereira is still a bit of a judgement call and anything that can help, or reinforce in these complex issues is a welcome addition to case workers.

    Again, being both practical and a wee bit cynical it appears to me that if Dr Keen returns too many ‘Yes’ decisions he would be out of a job.

    Mark P, you mention in your post that your beef is with housing officers rather than Now Medical. In my experience, housing officers are constantly under pressure to look for ways that exclude people from the housing duties. This pressure comes from team leaders, who are in turn, leaned upon by managers above them.

    At the risk of sounding a bit 80’s it seems to me that the real responsibility lies with central government who, driven by their consultants, McKinseys, whose motto is, “If it can be measured, it can be managed” inform local authorities that they have to get their homelessness figures down at all costs. The tacit implication being, do what you need to do. Even if you break the law, just dont get caught.

    This can be clearly seen in the investigation chapter in the code of guidance, where it states that an authority cannot sidestep it’s duties to make enquiries, but that ‘It is up to them to make such suggestions as may be acceptable to the applicant.

    Saying everything and nothing. That’s the real state of play at the moment.

    Reply
  20. ben

    Oh and although Shala is interesting froma legal point of view, let’s not forget Khelassi. What was Dr Keen thinking???

    Reply
  21. tim scott

    Ben, Khelassi (actually one of our cases) shows what a mess / minefield this whole area is – had you (or Nearly Legal!) realised that Dr Kenn actually examined the applicant in that case? It’s difficult to see what else he could have done in the cirucmstances. And we won the appeal in the county court.
    Getting back to the point, let’s not forget Allison – a ringing endorsement for Dr Keen’s assessment from the learned judges in the Court of Appeal, for sticking to his view having NOT examined, and having gone against the (albeit unreasoned) advice of the treating doctor (the haematologist) on the risk of Pereira injury or detriment. No doubt you will use Allsion in your training sessions.
    I say full marks to Dr K. He spotted an area where LAs were working big-time amateur, and has explored the boundaries for everyone.

    Reply
  22. tim scott

    Oh, and a postscript to Khelassi – after the case he declined the LA’s offer of permanent accommodation on the basis of disliking the area, found himself a rented property in the private sector elsewhere and moved in. Vulnerable? Hah!

    Reply
  23. Nearly Legal

    Err, Tim, I’ve not commented on Khelassi on this blog. It is clear from the Court of Appeal judgment that Dr Keen examined Mr Khelassi, and your point being?

    And you (Brent) didn’t win the County Court appeal, you lost the s.204 appeal and were refused permission to appeal to the Court of Appeal, which also added, for good measure, that even if permission was granted you would have lost. I do hope this isn’t an example of the factual accuracy of Brent Homeless officers ;-)

    The Khelassi judgment doesn’t seem to show anything of a mess or minefield to me, but never mind.

    Any chance of the figures (or estimates of proportions at least) of the ‘yes’ reports from Now Medical that you mentioned? And how many were borderline? I’m really curious now.

    What happened with Mr Khelassi some time down the line strikes me as pretty much irrelevant to the question of his vulnerability at the time of application – besides, you don’t give any of the circumstances in which he obtained accommodation.

    What Allison means has been discussed extensively above. It is as daft to see it as a ‘ringing endorsement’ of Now Medical as it is to see Shala as a devastating critique of Now Medical. The cases are about areas of relative competence/specialisation and the weighing of evidence that a homeless officer is supposed to carry out anyway.

    As mentioned before, the need for adequate medical advice for LAs is clear – no argument on that.

    Reply
  24. Ben

    It’s always the detail gets ya! I read the Khelassi thing on Baillie and the whole thrust of the case was that Dr Keen shunned the expert stuff without even being on nodding terms with K.

    I stand corrected.

    Dont get me wrong. I realise in this contemporary world, that Now Medical is a crucial tool. Moral imperatives fly out of the window in the face of the pressure to cut temporary accommodation. And when I first heard of the service my initial thought was “Damn. What a fantastic idea. I wish I had thought of it”!!!!!!

    But it just seems to me to be a sign of the times. Nobody wants to talk about it but to believe in balanced, objective decision making in homelessness work is naive in the extreme. On my first day as a homelessness adviser (LB Lewisham 1989) I was welcomed to the office by my senior who said “Welcome to the unit Ben. I want you to see yourself as part of a gigantic net, and your job is to keep as many people out of as possible. If we have to accept people then fair enough, but that’s not the name of the game”.

    When I train homelessness workers, everybody gets that. People who argue against local authority decisions are always shocked. I just wish that the government would be a bit more honest about it.Dr Keen fills a need. Morally I have a problem with that, pragmatically I think……”Good job”!

    Reply
  25. Housinganger

    I’m sure Tim will be happy to release the numbers under the Freedom of Information Act by the sounds of it.

    Reply
  26. tim scott

    It’s not really my area – I don’t keep the stats – but I remember we did get a FOIA request some time ago from some obviously not-too-bright junior / trainee at Bindmans, I think it was. Great letter, loaded with typos including continually referring to “nowlegal” rather than “nowmedical”!!! We all had a good laugh.

    Reply
  27. Nearly Legal

    Tim, you tease. Flaunting the prospect of ‘yes’ reports, but when it comes to actually giving even a vague idea of proportions you come over all coy. So let’s go anecdotal – in your experience, what proportion have been ‘yes’ and what proportion of those borderline. Back of the envelope will do, for starters…

    Reply
  28. housinganger

    And did you ever reply to the trainee at Bindmans or were you to busy laughing?

    Reply
  29. tim scott

    As I recall, the questions were so badly worded that it seemed very arbritary. I think we were asked 1) overall how many cases NMed saw, and 2) how many they said were vulnerable. But we send them all kinds of cases, not just vulnerablilty cases (eg. central heating requests, locata cases, sheltered housing) so our reply to the first part included everything. Meaningless.

    Reply
  30. Nearly Legal

    Still not giving us even your experience of the proportion of positive reports, Tim? Can’t be too difficult to answer.

    Reply
  31. Housinganger

    It would seem that it is ;)

    Reply
  32. Reg

    I’ve worked as a homelessness officer for various councils.

    Nearly, in the main you’re right – Dr Keen routinely emphasises the least favourable interpretation possible of the applicant’s condition possible on the presenting facts. That is why homelessness departments keep going back to him. Now Medical is useful to decision-makers. Its not exactly rocket science. I’m just reporting my experience and what I’ve witnessed first hand. I’m not surprised solicitors are sceptical about Now Medical, particularly when the recurring pattern is surely apparent to any experienced adviser in a way that is unlikely to be apparent to a district judge.

    Sure Dr Keen sometimes advises against an adverse decision….in a fashion. Having reflected on this point, what I find telling is that in such cases Dr Keen shall often state a case is at the borders of reasonableness rather than by making a unequivocal recommendation that would lead to the acceptance of a duty or overturning of a discharge – even when the facts he draw upon to make such a conclusion point to a positive determination, rather than a borderline judgment call. Perhaps it wouldn’t be good for business to upset your customers too much.

    While I would say that Dr Keen does make positive recommendations, to say “he says yes to loads of cases” is in my experience a gross exaggeration.

    And no you’re not being cynical in assuming that Dr Keen took on a psychiatrist after Shala. It was rather shortly after the judgment if I remember correctly. Again, good business sense…

    But as has already been touched upon in the above discussion the whole Now Medical issue is problematic because of wider issues that are in themselves contradictory, not least the extent to which homeless officers and senior officers conducting reviews can truly be impartial, coupled with the limited ability of the courts to interfere on issues of fact. I’m not making a judgment call here (there are after all strong arguments for adhering to the classic JR grounds). I’m just suggesting that its hardly surprising we’ve got a company like Now Medical that does what it does. It will be interesting to see how the higher courts approach Part VII reviews in light of Tsfayo.

    The wider context is of course the wide disparity between the apparent aims of Part VII (a safety net to certain categories of homeless persons which assumes housing can be secured for all qualifying persons) and the wholly inadequate numbers of vacancies available to LA’s to discharge their duties, consequently the inherent motive to gatekeep. And as Ben quite rightly points out, central government policy is to a large extent responsible for the difficult position experienced by local housing authorities.

    Reply
  33. Nearly Legal

    Reg, that is all very interesting indeed. Thank you.

    The higher courts have already considered reviews in the context of Tsfayo – albeit in the context of a review of possession proceedings against a demoted tenancy. Gilboy (R) v Liverpool. My comment is here – https://nearlylegal.co.uk/2007/10/demoted-tenancies-and-human-rights/

    Application to s.202 reviews could be interesting, for although arguably reviews of reasonableness of decision, rather than finding of fact (the Gilboy issue), there would be a stronger argument that the review was decisive of civil rights and obligations. Hmmmm.

    Reply
  34. tim scott

    Whoa housinganglegrinder, I’ve been away – is that OK with you? Shall I check with you guys in future before I take a few days off?
    Anyway, I’d say Nowmedical say yes to the following: central heating 100%, sheltered housing 90%, locata appplications 50%, vulenrable 33%, extra bedrooms v. few, say 5%.

    Reply
  35. Nearly Legal

    Tim, thanks very much for the response.

    So, just for clarity, you are saying that your experience is that Now Medical says vulnerable on 33% of the referrals that you have made to them on homeless applications on vulnerability issues – yes? or indeed no?

    PS – ‘been away’? Hmm.

    Reply
  36. Housinganger

    Housinganglegrinder I like that.

    If you would check with us in the future that would be better ;)

    You don’t happen to live in eastgrinstead do you?

    The comment on my post about Now Medical was posted suspiciously close to this one ;)

    Reply

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