The Claimant (R) had sleep apnoea and type 2 diabetes (where he was not dependant on insulin) His condition led to respiratory and heart failure in 1998, from which time he was prescribed a Continuous Positive Airway Pressure (CPAP) machine for use every night. Two GPs had said that it was necessary as his condition was so severe.
R and his wife became homeless when they lost their tied accommodation. They applied to the local council, Birmingham, as homeless under the Housing Act (HA) 1996 Part IV. They were found not to be in priority need as R was deemed not to be vulnerable; but without a supply of electricity he could not use his CPAP machine. They asked for a review, but temporary housing pending the outcome was refused.
An emergency injunction was obtained from the Administrative Court pending trial. Birmingham was relying on advice from a group called Nowmedical that use of the CPAP treatment was not necessary.
R appealed and sought continued interim housing from the county court. By the time of the hearing of that appeal on the homelessness issue a report had been obtained from R’s consultant stating that there was a risk of respiratory failure if the treatment stopped for a prolonged period (eg 1 week). At the hearing the judge held that the advice of Nowmedical should be regarded with caution and ordered continued interim housing.
Judging whether someone is vulnerable is a composite assessment of all of the circumstances. In assessing whether a person can cope with homelessness without harm, his or her ability to find and maintain accommodation, per se, is not decisive following R v Camden ex parte Pereira (1998). It depends on the risks associated with the state of homelessness in comparison to a person without community care issues. However, over-reliance on medical advice such as that given by Nowmedical, may amount to an authority fettering its discretion. The LA in question may not have made adequate enquiries if such advice is not based on the client’s medical records and/or an examination, or if no enquiry is made of his own GP or consultant. R v Newham LBC ex parte Lumley (2001) requires that there needs to be sufficient information on which an authority can base its judgment. Similarly if a client has not had the opportunity to respond to unfavourable commentary or advice then the authority may not have adequately carried out its enquiries. Where there is a conflict of medical opinion the authority will need to resolve it, if possible, or show its reason for taking the less favourable view.