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21/11/2021

Recitation is not application

SR v Lambeth London Borough Council, County Court at Central London, 21st October 2021 H40CL201 – HHJ Roberts (unreported elsewhere)

Our thanks to Justine Compton of Garden Court Chambers for the following note of a section 204 appeal judgment on a priority need decision, refused at s.184 and s.202 review, which features (once again) Now Medical reports done with no face to face assessment being preferred by the local authority decision makers over direct and specialist medical reports submitted by the applicant.

The Appellant is aged 23 and has a learning disability. She was homeless having returned to the UK from abroad due to family reasons

The council obtained no less than 3 reports from NowMedical during the review process. The Judge noted that none of these reports were on the basis of a face to face assessment.  The Appellant submitted a report from a consultant psychiatrist who specialises in learning disabilities and an assessment from SR’s social worker (from the same local authority). Astonishingly, the Council failed to consult its own Social Services department during the review.

The psychiatrist stated that SR “doesn’t know how to cook beyond ready meals.  She has lot of difficulty finding places.  She can’t use a map and would get lost in London.  She wouldn’t be able to find a doctor’s surgery without help.  Her language comprehension is poor.  She gives confident and plausible answers, but she doesn’t understand the matters being discussed.  She underestimates her disability…  The Appellant’s IQ is in the lowest 2.5% of the population, with deficits in social and adaptive functioning, with onset in childhood… The Appellant has difficulties with social function and poor skills of daily living. She has never lived independently and has been dependent on her family throughout her life.”

SR’s social worker stated that SR had deteriorating mental health and was at risk of isolation, malnutrition and exploitation.

HHJ Roberts upheld all grounds of appeal as follows:

  1. The council’s approach to the medical evidence was unlawful. The reviewing officer failed to adequately explain why it preferred NowMedical’s evidence over the evidence of Dr Camden-Smith and the social worker.  Applying Guiste v Lambeth London Borough Council (2020) HLR 202 (64), the court concluded:

When I look at the review decision one can see that there is a faithful recitation of the evidence in this case. There is a faithful recitation of the law.  But I have absolutely no doubt that, even giving it a benevolent reading, there is no rational explanation as to why the evidence of the Appellant’s consultant psychiatrist and the social worker have been rejected…There is not one line in the NowMedical reports dealing with these points about her inability to engage with the Personal Housing Plan, to deal with landlords, or understand what she might be asked.  This is on all fours with the guidance given by Henderson LJ.”

If further reasons were necessary, NowMedical are not experts (unlike Dr Camden-Smith).  They had not seen or interviewed the Appellant.  That point has not dealt with at all.  It is not a question of giving weight to the issue, but a question of not considering it at all; of not giving any reasons why NowMedical was preferred over Dr Camden-Smith.  The Reviewing Officer has failed to follow guidance that was given in Shala v Birmingham City Council (2008) HLR 8, to seek to resolve gulf of opinion between NowMedical and the treating physicians.  NowMedical say there are no risks. These deficiencies in not answering matters raised by Dr Camden-Smith fatally flaw the Respondent’s decisions.

  1. The court found that the council’s approach to applying the vulnerability test was also flawed:

The difficulty is not in the recitation of the law, but in the failure to carry out any application of that test to the factual matrix.  The reviewing officer doesn’t identify risks set out from Dr Camden-Smith’s and the social worker’s evidence, and then assess what the learning difficulty and social phobia presents when living on the street.  In short, there is simply no proper engagement or analysis of these risks and how they may put her at risk of harm when homeless.”

  1. The court agreed that the council failed to make adequate inquiries.

In my judgment there is no question – and no answer was put forward as to why they didn’t contact the social worker.  I have to work on the assumption they haven’t done so.  Having looked at new evidence de bene esse, it is extremely cogent.  It does in itself vitiate the decision that has been made.  Relevant information has not been looked at.  The Appellant’s case would have been even stronger if they had, as they should have, probed the evidence.”

  1. The court further found that the council had failed to consider vulnerability for some other special reason. The words in Crossley v City of Westminster Council (2006) HLR 26, CA were considered to have direct application to the facts of SR’s case.

There are a combination of facts, which I will not repeat, as to the Appellant’s vulnerability in terms of nutrition and so on.  The reviewing office has simply failed to take them into account.  Citing the evidence and saying ‘I accept NowMedical’ simply will not do.  Of course, it’s a decision for the reviewing officer, but she needs to take account of all relevant considerations.  In that analysis she has not properly done so.”

  1. Finally, the court considered the council had also failed to comply with its duties under the Equality Act 2010.  Applying the guidance of Briggs LJ in Hackney LBC v Haque (2017) PTSR 769, the court held that:

there is a need to focus on specific aspects of the impairments, to bear in mind that the applicant would not be able to deal with obtaining a tenancy or to understand landlords, to focus on that, to focus on the disadvantages, to focus on accommodation needs, to recognise that the applicant’s needs might require more favourable treatment, and to review the suitability of accommodation. In short, as Briggs LJ said, it requires the reviewing officer to apply a sharp focus, not just simply a formulaic answer.  It means a sharp focus, and the reviewing officer was required to ask herself with vigour and an open mind, whether the Appellant’s disadvantages and needs were such that the was suitable.  That has not been done.  A formulaic dead hand approach of going through motions won’t do.”

HHJ Roberts considered that there was sufficient evidence to warrant a variation of the decision, thus indicating that on any analysis of the information, the Appellant was clearly vulnerable and in priority need.

This case demonstrates that local authorities continue to sure up their decisions with their own ‘independent’ medical advisers at their peril. The court is becoming seemingly less tolerant of the approach of reviewing officers who effectively ignore cogent medical evidence and prefer their own evidence.  Whilst review decisions appear to be getting longer, the failure to apply an analytic, fact sensitive assessment of the real risks of homelessness to vulnerable applicants continues.

SR was represented by Denise Phillips from GT Stewart Solicitors and Justine Compton/Nick Bano (assisted by pupil, Alex Schymyck) from Garden Court Chambers.

 

 

Posted in: Homeless
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. Cait

    Wow – I stopped working in housing law in 2012 – am gobsmacked that Now Medical is STILL being used – naivete on my part maybe,

    Reply

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