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Allocations: Scope of Medical Reports

By Dave

R(Bauer-Czarmonski) v Ealing LBC [2010] EWHC 130 (Admin) is a kind of a classic post-Ahmad decision in that, rather than being a challenge to the CBL Locata scheme as a whole, it relates to the way in which Mr Bauer-Czarnomski’s application was treated by Locata; that is to say, it concerns taking into account immaterial considerations.   It is also notable because Mr Bauer-Czarnomski successfully represented himself.

Essentially, Mr Bauer-Czarnomski applied for an allocation in 2004.  He was placed in Band D, the lowest band on the Locata scheme.  His parents both have serious mental problems which necessitated him in giving 24 hour care to them.  This had a damaging impact on his own health as was noted by his doctor in a medical report in 2006.   Now, here’s where it gets interesting.  Locata get its own medical report from, you guessed it, Dr Keen who did not see or communicate with Mr Bauer-Czarnomski.  Dr Keen accepted the GP report but then went on to advise on priority, essentially saying that the current accommodation was adequate.  As Collins J put it, the council were wrong to rely on that advice which was not a matter for Dr Keen who

“… appears to have approached it on the basis that the physical condition of the house and the fact that there was an independent bedroom was sufficient to mean that the conditions of the housing were not such as were affecting his health within the meaning of the policy.  That, in my judgment, was manifestly wrong.  Conditions must extend to the conditions involving those who are living at the house, the effect of their actions and so on.”

Perhaps taking account of the Shala decision, an opinion was sought from a psychiatric adviser who agreed with Dr Keen and went on to say that, in his view, there were other households in a more unpleasant situation.  As Collins J again pointed out, that was not a matter for him to determine.  The point was that Mr Bauer-Czarnomski’s physical and possibly mental health was being adversely affected by the conditions because of the disabilities of his parents.  Collins J said that Band D was clearly wrong and quashed that decision, saying that he should have been placed in either Band B or C.

Mr Bauer-Czarnomski raised a further issue that reliance should not have been placed on the views of a doctor who had not contacted him and had no knowledge of his case beyond the written medical report.  Collins J said that he did not think it was essential for the medical advisor to see the individual “… certainly if he does not dissent from the medical views given in the report that is presented”; suggesting that it may be if there is dissent.  The problem was that Dr Keen and the psychiatric advisor went beyond their remit giving opinions on the appropriate band to put him in, which was a matter for the council – a fairly basic administrative error and not one which really should have come before the High Court.

Mr Bauer-Czarnomski got his costs with a warning from Collins J that they are not terribly generous for a litigant in person.  Finally, Collins J said that he wouldn’t put his direction about appropriate band in an order “because if the Council do not take any notice of it, they will be in trouble”.

Posted in: Allocation


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