Shala and another v Birmingham City Council [2007] EWCA Civ 624

The appellant in this case (S) was the wife of a married couple from Kosovo who had successfully sought asylum in this country and were granted indefinite leave to remain.  Their entitlement to support from NASS ended and they sought housing from their local authority Birmingham City Council as persons in priority need.  Initially and then on review their application was rejected.  S appealed to the County Court which was rejected but they were given permission to appeal to the Court of Appeal.  The main substance of the appeal concerned the use and obtaining of medical evidence by the local authority.   For the purposes of the Housing Act 1996 a person in priority need of housing includes one who is vulnerable as a result of mental illness or some other special reason.  This has been further defined in the Act’s Code of Practice so that the question for the decision-maker is whether the applicant would be less able to fend for themselves than the ordinary homeless person, so that he or she would suffer injury or detriment.  An applicant who is turned down to an in-house review may appeal to the County Court.  This appeal turned on the handling of the medical evidence by the local authority, provided by S’s solicitors.

A medical report by S’s GP diagnosed hypertension and depression and a further report from a psychologist and psychiatrist confirmed severe depression and a further diagnosed post-traumatic stress disorder.  Birmingham took its own medical advice and was informed by a doctor who had viewed S’s notes that her condition was not of particular severity and it did not impair her ability to function or impede her daily activities.  S obtained further evidence from another GP that she was suffering severe PTSD and was under the care of the local community psychiatric team.  Her conditions were reported to be very debilitating and unable to work.  The response by Birmingham’s medical expert, commenting on one of the applicant’s reports, stated that there was no particular assertion of severity or that psychiatric hospital admission or other substantial treatment was necessary.  In two further reports from one of S’s medical practitioners a statement was made in line with the Code regarding S’s vulnerability.  It concluded that the prospect of being homeless would have a serious detrimental effect on her mental state and that she would be less able to fend for herself than any person without a mental illness.

In a letter to S, the local authority set out a number of reasons for rejecting her application for priority need by its Homeless Review Panel.  It is the content of this letter, particularly the medical evidence that was subject to criticism by the Court of Appeal.  The rejection letter dismissed the application on the grounds that the additional information provided by S’s medical practitioners added nothing new and did not raise any new information that was not already known.  The Court held that this was a flawed decision because it had excluded consideration of something of real and possibly decisive relevance.  Both doctors described S’s condition in far graver terms than Birmingham’s medical advisor.  Birmingham was not entitled to ignore the reports as adding nothing to S’s case.  These on their own were sufficient grounds for allowing the appeal but there were other grounds that gave substantial cause for concern.

Birmingham’s medical advisor stated in a report that there was no particular assertion of severity and yet S’s doctors had described her condition as “severe” and that she was “very depressed”  He had not examined S nor spoken to any of her doctors.  Birmingham also criticised S’s medical advisors for applying the wrong legal test and told them that vulnerability was not a matter for them.  It also introduced further reasons based upon on the medical/psychiatric opinion of one of its officers who was not a qualified medical practitioner.   Birmingham’s medical advisor although experienced in providing court reports, primarily for local authorities, was a not a qualified psychiatrist.  Neither did he formulate his advice in the language of the Act and Code, a point criticised in the decision letter regarding S’s medical reports.  The Court of Appeal held that local authorities were not entitled to demand that the opinion or advice be couched in terms of their eventual decision.  However there was no harm in medical advisors directly addressing those matters within their professional competence which the local authority had to make a decision about, so long as both they and the local authority recognised that it was for the latter to make its own appraisal of every opinion in light of the available diagnostic and evidential material.  The County Court had been entitled to regard Birmingham’s medical advisor’s dismissive comments as insufficiently authoritative for the local authority to rely on.  Finally, the Court of Appeal commented that although there was no requirement for a doctor to examine a patient before commenting on other doctor’s reports, the decision-maker needed to take the absence of an examination into account in reaching its decision.  It would also have been helpful if Birmingham’s medical advisor had discussed S’s case with her doctors before finalising his report, so long as there was an agreed minute of the discussions that took place.

Appeal allowed and review decision quashed.

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