The Pereira test is not exactly easy to apply and equally difficult to challenge on a first appeal. In Kata v Westminster CC [2011] EWCA Civ 1456 and Simpson-Lowe v Croydon BC [2012] EWCA Civ 131 (neither are on baili or westlaw, but are on Lexis; Kata is noted in February’s Legal Action at p 13), permissions to appeal not vulnerable s 202 homelessness reviews, upheld by the county court, were refused by the CA. Both may well have had an arguable case at an early stage in the appellate process, but, of course, these are second appeals and, therefore, governed by the (baleful) CPR 52.13. The court will only grant permission if the appeal would raise an important point of principle or practice; and/or there is some other compelling reason for the CA to hear it. The bar is set incredibly high. [My friend is thinking of doing a research project about permissions to appeal but not including second appeals; I hope that these cases persuade her that these pta applications are significant.]
Kata
We’ve known about this one for some time and forgive me for not having got round to it before. The subject-matter forms part of my first (not particularly well-conceived) empirical research project many moons ago. The question for the reviewing officer was whether Mr Kata, who had “a symptomatic HIV infection, his previous diagnosis of TB gives him an AIDS defining diagnosis”, was vulnerable for the purposes of section 189(1)(c), 1996 Act. The review officer found him not vulnerable – the Code of Guidance at para 10.32 says that applicants with AIDS and HIV related illnesses may be vulnerable. It became clear that Mr Kata did in fact have full AIDS. Macfarlane LJ found that the reviewing officer and county court judge had applied the right tests and, although there was now grater clarity that Mr Kata had full AIDS, the question was “what is the difference” between the review officer and judge’s view of the medical evidence, and that clearer diagnosis. He did not see that there was a material error in the way the case had been dealt with; and was not posible reasonably to argue that the judge was plainly wrong in endorsing the review officer’s decision.
On the more specific application of the Pereira test, the review officer and judge had considered the detailed evidence about how the diagnosis had not “compromised” Mr Kata’s ability to move around and his day-to-day life. There was a care report which supported the authority’s decision on the Pereira street homelessness test (despite Mr Kata suffering from anxiety, depression and low mood, together with references to self-neglect in the paperwork). It was open to the reviewing officer to come to the decision he did and the judge to uphold the decision.
Simpson-Lowe
Mr Simpson-Lowe was involved in a medical accident and suffered a fractured femur, and continues to suffer from mobility problems, headaches, depression and asthma. He is in receipt of disability living allowance at the higher rate because he is “unable or virtually unable to walk” (an outcome in the teeth of the medical evidence which suggested that his mobility was good, as noted by Jackson LJ). Croydon found him not vulnerable.
To persuade the court on the first limb of CPR 52.13, Simpson-Lowe raised a point of law as to the inconsistency between, on the one hand, Shala and, on the other, Allison, in the way in which the Court of Appeal has dealt with the local authority internal (well, Dr Keen) medical advisor’s opinion. It was argued that, on the one hand, Shala says that Dr Keen is a gp who is not qualified to comment dismissively on specialist psychiatric evidence, and, absent an examination, cannot constitute expert evidence. His advice “has the function of enabling the authority to understand the medical issues and to evaluate for itself the expert evidence placed before it”. On the other hand (as it was put to the Court), Allison distinguishes Shala, even though Dr Keen had not examined Allison, because Keen’s advice was “well founded in his medical expertise” and he was fully entitled to advise Wandsworth on the way in which the medical difficulties would be likely to affect Allison. Not surprisingly Jackson LJ follows NL’s comment on Allison (well, not literally) saying that there was no inconsistency between the two decisions: Shala concerned where Dr Keen sought to offer an expert opinion in conflict with a (proper) expert’s opinion; Allison was where Dr Keen offered proper advice to the local authority on the medical evidence. The further ground of appeal concerned the apparent difference between the homelessness review and the DLA award. But that was met with Mangion v Lewisham LBC [2008] EWCA Civ 1642 (assessment for incapacity benefit different from assessment for housing).