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09/01/2011

Priority through dizziness?

Hussain v London Borough of Hounslow [2010] EW Misc 15 (CC) (01 December 2010)

Not sure why this one wasn’t written up in November. I thought we’d covered it, but apparently not. It is worth a look not just on the specific issues but as the pre-amble sets out the relevant statute and case law in some detail, including the guidance given in Holmes-Moorhouse v Richmond-upon-Thames BC [2009] UKHL 7 ; [2009] 1 WLR 413 on the approach the court should adopt in interpreting review decision letters.

This is a s.204 Housing Act 1996 appeal from Central London County Court. The appeal was from a s.202 review decision by Hounslow that Ms H was homeless, eligible but not in priority need as her medical conditions did not amount to vulnerability.

Ms H had been staying at temporary addresses, then applied to Hounslow as homeless. Initially Hounslow made inquiries into vulnerability but did not accept an application [naughty]. After solicitors got involved, Hounslow did, finally, accept an application. A couple of weeks later, the decision of not in priority need was made. On review, the review officer additionally contacted Ms H’s GP. Within a month the s.202 review decision upheld the s.184. The s.202 review letter is appended to the judgment and can be seen here. Ms H’s medical issues were: depression; gall bladder stone; high blood pressure; aches; and mobility issues, including dizziness and falling.

On appeal the grounds were:

  1. The review officer didn’t apply the Pereira test in respect of Ms H’s depression.
  2. A composite test for assessment of vulnerability was not applied.
  3. Too strict a test was applied in relation to mobility.
  4. The review officer committed a material error of fact in relation to Dr Keen’s opinion (Now Medical advice to the Authority) on depression
  5. The review officer did not have regard to the risk of injury or detriment stemming from recurrent falls.
  6. The review officer failed to give reasons for rejecting the GP’s opinion that Ms H was vulnerable.

Held:

On 1. Overall the review did apply the Pereira test in respect of Ms H’s depression. While it may be arguable that it would not be enough if the review had been limited to the view that depression would not “hinder you from managing your daily affairs when street homeless” (although the Court’s view was that this would be sufficient – not being hindered would mean not less able to cope than a normal person), the review had already considered the depression in earlier passages. In addition, while it was true
that:

There is no reference to depression under the heading “Composite Assessment/Comparative” (paragraphs 44 to 49). Under “Composite Assessment/Composite” at paragraph 52 is the reference of which complaint is made. This relates to one of the headings in 10.16 of the Code – each of which deals expressly with vulnerability i.e. the extent to which there is a comparatively higher risk of injury or detriment. I am satisfied that the RO did not simply ask herself the “wrong” question – whether the condition would or might deteriorate. She was, I think, considering one further aspect of the future, homeless, situation having already addressed others at paragraphs 44 to 49 (which do not address depression but do look forward to prospective homelessness and do deal with risk of injury and detriment) and having already concluded that there was no enhanced risk at paragraph 22. Other references to depression, at paragraphs 55 and 60, show the RO’s permissible and unchallenged view of the lack of severity of the depression.

Ground 1 dismissed.

On 2., whether the review applied a composite test, Ms H had argued that the review under ‘composite’ appeared to be based on para 10.16 of the code of guidance. This was wrong as 10.16 was not the composite test. Ms H was wrong on this point, para 10.16 was a sub set of 10.14, which sets out the composite requirement. While the review letter was far from clear in structure on the composite assessment. There was no clear decision after the composite section as there was after each individual problem. However, the appellant had failed to show that the composite test was not applied, even after disregarding ‘possibly self-serving’ assertions that it had been from the respondent. Ground 2 dismissed.

On 3., Ms H argued “that the RO applied too high a comparative test; being reasonably satisfied that a person would suffer injury or detriment does not require comparison with serious or complete incapacity”. The issues on conclusions on dizziness were a separate ground of appeal – see below. The reviewing officer was attempting ‘in her own way’ to describe the degree of effect of the mobility issue. There were discussions of mobility elsewhere in the review decision, mitigating would might otherwise have appeared as too high a bar, when the decision was taken as a whole ‘without lawyerly gloss’. “What the RO is saying, taken in context, is that, like normal homeless people, the Appellant was and would be able to move around and use public transport for that purpose in spite of her dizziness and proneness to falls”. Ground 3 dismissed.

On 4. Did the review officer make a material error of fact or irrational decision in view of Dr Keen’s opinion? Dr Keen had said that he did not think Ms H’s “medical issues here are disabling or prevent her from supporting herself if homeless”. The review decision stated that Dr Keen “did not feel that your depression hinders your ability to fend for yourself without injury or detriment when street homeless”. Ms H argued that this meant that the review officer misrepresented or misunderstood Dr Keen’s opinion, effectively adding ‘without injury or detriment’. Without ascribing any special status to Dr Keen’s language, or assuming he was using a shorthand as a regularly used medical advisor (who, for clarity was also the Judge’s personal GP), “it was not unreasonable for the RO to treat as implicit in his answer the absence of risk of injury or detriment”. There was in any event enough material elsewhere in the decision letter to show that a proper consideration of the depression in Pereira terms had been made. Ground 4 dismissed.

On 5.- was there attention to Ms H’s dizziness and falls, Ms H argued that her GP had “reported that the Appellant’s depression caused her to suffer dizziness which had led to recurrent falls […] and that although the RO referred to this in the [review decision] (paragraphs 32 and 47), she did so in the context of mobility and failed to recognise it as a risk of injury or detriment”. This absence of consideration was ‘startling’ in the sense of R v Brent LBC ex p Bariise (1999) 31 HLR 50, 58, CA, suggesting the relevant matter had been ignored.While the Respondent argued that the dizziness had been taken into account in mobility and there was no medical evidence before the officer to suggest injury or detriment as a result of the falls, Ms H argued that the review officer had not pursued the issue of dizziness and reported falls with Ms H’s GP, and that relevant inquiries had not been made, particularly given the repeated references to dizziness and recurrent falls in the original s.184 decision.The review letter only mentioned ‘proneness’ to falls and did not deal with the actual, recurrent falls.

“The Appellant submitted that
i) the letter and the original decision show that the fact of recurrent falls was accepted by Ms Luty [the initial decision officer]
ii) the RO appears to have misunderstood or unconsciously misrepresented the GP’s evidence because her categorisation of the Appellant being “prone to falls” is not as serious as suffering from dizziness which led to recurrent falls. Moreover, there was no material – and therefore no factual basis – which entitled her to, in effect, discount what the GP had said
iii) the ground of appeal is that the RO failed to have proper regard to the fact that the Appellant suffered from dizziness and recurrent falls. The fact that she referred to the Appellant’s condition as being prone to falls strongly suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless.

For the Respondent it was said that, while acknowledging that neither officer had explicitly considered the risk of injury or detriment as a result of the falls, ‘prone to falls’ in the [review decision] encapsulates both the Appellant’s past history of fall(s) and the risk of future falls. One cannot be prone to falls, if one has never fallen. It was thus submitted that the suggestion for the Appellant that the wording suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless was wrong.”

Held, while the questions of dizziness and falling were addressed in the review decision in another context, there was no reference in the decision to any risk of injury or detriment arising out of dizziness leading to the risk of a fall. It was only addressed in the context of mobility. This was a startling omission in the Bariise sense. Nothing in the decision suggested a scepticism as to the dizziness and falling or its mention by the GP. As it was mentioned in relation to mobility, it was not discounted, but there was no discussion – and apparently consideration – of the physical risk from falling – either for or against Ms H.

On Ground 6, the GP’s letter stated that she was ‘fairly vulnerable’, not ‘very vulnerable. This was sufficient in itself to distinguish this case from Hall v Wandsworth LBC, Carter v Wandsworth LBC [2004] EWCA Civ 1740; [2005] 2 All ER 192; ;[2005] HLR 23 where the requirement to give reasons for rejecting an important aspect of the applicant’s case was set out.

In any event, Ms H was treated as ‘fairly vulnerable’ so the GP’s view was not rejected. Then the review letter dealt with vulnerability and the failure to refer explicitly to the GP’s opinion was not a failure giving rise to an error of law. Ground 6 dismissed.

Appeal allowed on ground 5, review decision quashed. Costs to the Appellant.

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.

4 Comments

  1. Cait

    I’m still reeling from reading the phrase
    ‘without the prop of accommodation’

    Who knew ? – housing isn’t a necessity – its just a ‘prop’ for the inadequate ….

    and next week we’ll discover that water is to be taxed since it’s clearly a luxury item used by the profligate.

    Cait

    Reply
  2. Stephen O'Neill

    In fairness the reference to the particular debilitating effects of depressive disorders and the fragility of those suffering from them if suddenly deprived of the prop of their own home is a reference to Auld LJ’s dicta in Osmani v LB Camden [2004] at [38(5)(f)].

    Perhaps not the best use of the English language.

    Reply
  3. tim scott

    Did I read it correctly – Dr Keen is also the Judge’s “personal GP”?!

    Are there no limits to his empire?

    Reply
    • NL

      You did – but no issue was taken with Dr Keen’s expertise to give the opinion, and no-one took any issue with the Judge hearing the case despite the relation, as it didn’t bear on the issues.

      Reply

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