A failure to engage – ‘Medical advisors’ on homeless vulnerability

Cherry v LB Tower Hamlets. County Court at Central London, 11th January 2018

This is a s.204 appeal of a ‘not vulnerable’ review decision by LB Tower Hamlets. It is of particular interest because of the consideration of the role and place of the ‘medical advisors’ used by LBTH – Now Medical, and the strong criticism of the handling and consideration of medical reports.

What follows is the note of judgment by Nicholas Nicol of One Pump Court and John Gorringe of TV Edwards and we are very grateful to them for providing it.

Facts
C is a 40-year-old single man. 6 years ago he was the victim of a serious assault by a gang of youths. He has been homeless for 4 years after being a victim of domestic violence. In a report compiled in 2016 for the purposes of a criminal injuries compensation claim arising from the assault, a consultant psychiatrist stated C had developed a severe episode of PTSD which was continuing and of a moderate severity. Further, his PTSD has had a significant and enduring impact of all areas of his life including his cognitive function, his ability to interact with others socially and to participate in his day to day activities. He required rapid access to treatment. Further, he had developed a moderately severe episode of Depression. He also fulfilled a diagnosis of Cannabis Dependence but the psychiatrist was of the opinion that the PTSD and Depression had arisen solely due to the index assault, not his Cannabis use.

C approached LBTH on 3rd June 2016 for housing assistance as a homeless person. As part of their enquiries, LBTH sent a questionnaire to the psychiatrist and to C’s GP which asked no questions about the possible impact of homelessness but instead whether he could live independently. NowMedical provided three opinions, all concluding that C was not vulnerable. None of them mentioned the psychiatrist’s report. LBTH also purported to carry out an “Independent Living Assessment” of C’s ability to live independently while adequately housed.

By letter dated 12th October 2016 LBTH notified C that they had decided he was eligible for assistance and homeless but not in priority need. A review was requested. By letter dated 18th January 2017 LBTH’s review officer, Mr John Souray, accepted the previous decision had been defective because NowMedical had not seen the psychiatrist’s report but also stated that he was “minded to” decide on review to uphold the earlier decision that C was not in priority need. C’s solicitors got a further report from the psychiatrist who stated that C continued to fulfil a diagnosis of Depression of a moderate clinical degree, Post Traumatic Stress Disorder at a mild clinical degree and Harmful Use of Cannabinoids. She stated that these diagnoses have a significant impact on his global cognitive function and his ability to interact with others around him and noted that he remains untreated. She specifically stated,

In my opinion [C] is clearly disabled by his mental illness and thus significantly more vulnerable than an average person rendered homeless.

[C’s] mental health will remain unchanged or deteriorate without treatment coupled with the added severe stress of his homelessness.

I am concerned about his suicidality and hopelessness and it is my opinion his risk of suicide has increased since I reviewed him last.

Although C and his legal representatives were unaware of this until after the review process had concluded, Dr James Wilson of NowMedical provided a further opinion dated 24th May 2017. Again, in accordance with NowMedical’s standard practice, he did not meet or examine C or have access to his medical records. He stated,

… it is not evident that the applicant is so disabled that he is unable to cope with the effects of homelessness or seek and maintain alternative forms accommodation. The applicant has been able to attend appointments and access support, and on this basis, I would not consider him vulnerable as defined.

By letter dated 21st June 2017, Mr Souray notified C that he had decided on review to uphold the earlier decision that he was not in priority need.

Judgment

C’s appeal was allowed and LBTH’s decision was varied to state that C is in priority need. The judge took the law on vulnerability and priority need from Lewison LJ’s summary in Panayiotou v Waltham Forest LBC (2017) EWCA Civ 1624; (2017) HLR 48. He held:

  1. Mr Souray stated that the psychiatrist’s first report contained nothing to raise warnings about the NowMedical reports but was wrong to do so.
  2. The psychiatrist had several advantages over Dr Wilson of NowMedical:
    1. She had examined C twice whereas Dr Wilson did not.
    2. She was aware of his medical records whereas Dr Wilson was not.
    3. It was apparent from their respective CVs that the psychiatrist has considerably greater experience of personal and direct treatment of individual patients. The psychiatrist has had a settled position as consultant since 2007 whereas since 2012 Dr Wilson has pursued a career which is more remote from the treatment of individual patients and more concerned with assessment or treatment of persons as an expert.
  3. Mr Souray alleged that the psychiatrist had not applied the correct test of vulnerability while Dr Wilson had done so. Again, he was wrong. It was clear the psychiatrist was aware of and applied the correct test while it was also clear that Dr Wilson had applied too high a test: the test is not whether C is “unable to cope” but whether he is “less able than an ordinary person to cope with homelessness”.
  4. Mr Souray and Dr Wilson relied on C’s ability to attend appointments and access support but that was “a manifestly inadequate foundation for Dr Wilson, without further enquiry, to dismiss (the psychiatrist’s) conclusions”.
  5. Mr Souray had clearly overlooked the fact that Dr Wilson had signally failed to engage with the great majority of the reasoning and conclusions carefully expressed by the psychiatrist in both her reports which provided strong prima facie support for her view that C was vulnerable.
  6. The Independent Living Assessment did not address, sufficiently or at all, the psychiatrist’s points about C’s difficulty engaging with strangers and his need for medical help. It was primarily focused on C’s ability to fend for himself with ordinary day to day activities.
  7. There is no indication Mr Souray took seriously the psychiatrist’s concerns about suicide.
  8. Taking proper account of the evidence before Mr Souray, particularly the psychiatrist’s reports, and applying the correct test, any reasonable decision-maker would have reached the decision that C was vulnerable and therefore in priority need.
  9. In any event, having regard to the criticisms made above of the manner in which the medical evidence was handled, it would not be just to subject C to the vagaries of a reconsideration of his case.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged , .

5 Comments

  1. Oh good we now appear to have entered a world where the applicants psychiatrists can determine if someone is in priority need or not. I was under a clear misapprehension that the determination of priority need was for the authority to determine, how nice to be corrected.

    • I rather think the point of the case was precisely that it was for the authority to determine, not to rubber stamp the decision of its medical advisor who has no place making such decisions).

    • Seems more like the judgment is stating what should be obvious to all review officers: Where the applicant’s medical adviser is both obviously more qualified to advise on the applicant’s condition and demonstrates a greater understanding of the statutory tests being applied than the NowMedical consultant, more credence should be given to their views.

      The decision is still with the housing officer and they can still, presumably, disregard the applicant’s psychiatrist if they can provide suitable reasons for doing so.

  2. Is there a wider issue here in terms of whether the medical advisors used by LAs are being instructed correctly and officers trained correctly. Surely should the housing officer have not sought clarification from the advisor when the advisor wrote that C wasn’t “unable to cope” if that’s not the right test? Should the advisor not have known what the correct test was? All this obviously is leaving aside the point that the medical advisor seems to be wanting to make decisions, i.e. vulnerability, that aren’t his to make.

  3. Why is it even legal for LAs to use companies like MowMedical to assess people they have never even consulted with? This is a backhanded way for LAs to simply ignore applicant’s own doctor’s reports and deny responsibility. It’s time MPs acted to outlaw this disgraceful practice.

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.