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Section 204 appeals – weighing medical evidence and ending ‘relief duty’

Perrott v Hackney London Borough Council, 29 Janaury 2021, Central London County Court (unreported – approved judgment here)

and

Perrott v Hackney London Borough Council, 29 January 2021, Central London County Court (unreported – approved judgment here)

Two linked s.204 appeals arising from Hackney’s finding that Mr Perrot was not vulnerable for the purposes of priority need – upheld on s.202 review – and Hackney’s decision to end the ‘relief duty’ under section 189B Housing Act 1996, also upheld on review.

The central issue in both appeals was the approach taken by the review officers to medical evidence and specifically the use of medical opinion provided by Now Medical for the council, and what was required to fulfil the ‘relief duty’. The two notes of judgment below are by Daniel Grütters, of One Pump Court, counsel for Mr Perrott and we are very grateful for them.

The ‘vulnerability’ appeal

Mr Perrott suffered from various gastrointestinal problems. He sought assistance from Hackney on several occasions, both when he was threatened with homelessness and when he eventually became homeless.

When Mr Perrot was threatened with homelessness, the council asked NowMedical Ltd for an assessment in June 2019, on the basis of information provided in December 2018. In her subsequent assessment, Dr Hornibrook did not think that “the specific medical issues in [his] case [were] of particular significance compared to an ordinary person.” The council found he was not vulnerable.

When Mr Perrott subsequently became homeless in December 2019, the council again found, in March 2020, that he was not vulnerable, relying on the June 2019 assessment. In the course of the review which Mr Perrot then requested, further medical evidence was provided. This included a questionnaire completed by his GP, Dr Shui, in June 2020. In her professional opinion, Dr Shui concluded that Mr Perrott’s gastrointestinal problems made him significantly more vulnerable than ordinarily vulnerable if rendered homeless. She specifically noted that Mr Perrott was often “debilitated by his abdominal pain and vomiting with weakness” and that he was in need of “good hygiene for fresh food, clean hand washing and bathing toileting facilities” so he could “avoid any gastrointestinal infections”. In upholding the decision, the Reviewing Officer gave “equal weight” to Dr Hornibrook’s assessment and to Dr Shui’s report.

HHJ Robert allowed the appeal. He found that the Reviewing Officer erred in law by drawing an equivalence between the assessment from June 2019 and the GP report from June 2020. The former was made by a non-treating doctor who had never examined or interviewed Mr Perrott. Dr Shui had both examined and interviewed him. Dr Shui’s report also referred to symptoms which were different and more severe than those considered by Dr Hornibrook. HHJ Roberts found it was perverse to say that the two reports were “not significantly different”.

HHJ Roberts further found that the Reviewing Officer erred in law by failing to provide any explanation for giving equal weight to the evidence of Dr Hornibrook and Dr Shui. Similarly, he held that the Reviewing Officer failed to provide a rational explanation for departing from Dr Shui’s conclusion that Mr Perrott was significantly more vulnerable than ordinarily vulnerable if rendered homeless. He also found a failure by the Reviewing Officer to engage with the reasons given by Mr Perrott and his treating physicians for claiming vulnerability.

HHJ Roberts also found that Mr Perrott suffered from a physical disability within the meaning of s.6 of the Equality Act 2010. He held that the Reviewing Officer – despite an assertion to the contrary – failed to properly apply the Public Sector Equality duty in that she did not in fact assess with a sharp focus the matters referred to in Hackney LBC v Haque at (43).

The ‘relief duty’ appeal

Mr Perrott had challenged the council’s review decision to uphold its decision to end the ‘relief duty’ pursuant to s.189B(7)(b) of the Housing Act 1996. This appeal was heard directly after another s.204 appeal by Mr Perrot, in which he challenged the council’s review decision on his vulnerability.

In allowing the appeal, HHJ Roberts noted that it was common ground between the parties that a proper assessment and personalised housing plan (‘PHP’), and the implementation of reasonable steps are conditions precedent before the 56 days period can be relied upon to end the relief duty. HHJ Roberts found that neither in the needs assessment, PHP nor in any other document did the council carry out an assessment of Mr Perrot’s medical condition and his housing needs, including what would be suitable for him. He further found that the PHP was never updated, as it should have been.

HHJ Roberts concluded that as a consequence of the council’s failure to engage with Mr Perrott’s physical illness and disability, it failed to consider what accommodation would be suitable for him and to take reasonable steps to help him to secure that suitable accommodation. It thereby failed to discharge the relief duty and, consequently, the review decision was quashed.

Noteworthy, HHJ Roberts rejected a jurisdictional argument from the council to the appeal, which was based on the failure of Mr Perrott at the time to challenge the steps the council had decided to take. However, HHJ Roberts found that this failure by Mr Perrott did not release the council from their duty to conduct and keep under review a proper assessment and to take reasonable steps.

Similar to his findings in the vulnerability appeal, HHJ Roberts also found that the council failed to discharge its Public Sector Equality Duty by a failure to focused on the specific aspects of Mr Perrot’s impairments in the needs assessment, PHP or any other document.

Comment

While the vulnerability appeal and the council’s failure to consider medical evidence properly in reliance on a Now Medical report might be grimly familiar, the relief duty decision is new and interesting. There have been very few reported s.204 appeals of an ending of the relief duty, and the findings that a PHP has to actually deal with the applicant’s personal circumstances, including their mental and physical health in order to comply is encouraging, given the ‘cut and paste’/standard form of a lot of PHPs.

The jurisdictional point will, I suspect, surface again.

 

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.

1 Comment

  1. Andy Humphrey

    Really good to see the Court engaging with the deficiencies in the “cut & paste” approach to PHPs, and not allowing the respondent council to get away with it. Councils who don’t carry out adequate assessments or take reasonable steps to relieve homelessness should not be able to get away with automatically discharging duty after 56 days, with the attendant problems that often causes when homelessness has not in fact been relieved. I look forward to seeing similar decisions in another related situation, namely where local authorities fudge the decision-making on homeless applications based on reasonableness to continue to occupy accommodation by awarding the applicant the prevention duty, doing nothing meaningful to “prevent” homelessness, and then discharging duty automatically after 56 days (or on the spurious assertion that the accommodation has suddenly become suitable for occupation). I’ve seen a lot of decisions of this kind, and it is about time the offending authorities were taken to task about it.

    Reply

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