Facts of the case
This was an appeal by the appellant, Mr. Guiste, of a decision by the County Court upholding Lambeth’s decision that he was not in priority need for homelessness accommodation.
Mr. Guiste suffered from potentially serious physical and mental health problems. He had a thyroid condition called hypoparathyroidism, which if untreated by prescription medication, could lead to convulsions.
In dispute in this case was the seriousness of the appellant’s mental problems. On the instruction of his solicitors, the appellant was examined during a lengthy face to face interview by Dr. Freedman, a Fellow of the Royal College of Psychiatrists with over 20 years of providing reports for the courts.
Mr. Guiste had a history of cannabis use and there had been previous incidents of self-harm and suicidal thoughts. The psychiatrist’s report noted that the appellant suffered from anxiety and depression and was at risk of harming or even killing himself due to command hallucinations. He did not understand the importance of taking his medication and needed help from his mother to manage his finances. She concluded that, if made homeless, it was unlikely that Mr. Guiste would take his medication, his mental health would deteriorate leading to a greater risk of self-harm and suicide.
Lambeth “outsourced” the provision of medical advice in housing cases to an organisation called NowMedical Limited. Two psychiatric advisers employed by NowMedical prepared reports for Lambeth about Mr. Guiste’s application for housing, but as is standard practice in such cases, neither of them examined or interviewed Mr. Guiste and for an unknown reason did not take up the opportunity to discuss Mr. Guiste’s case with Dr. Freedman.
The Legal Test
The court accepted that the review officer, when considering the issue of vulnerability, had considered the correct legal principles as set out in Hotak v Southwark LBC and Panayiotou v Waltham Forest LBC, namely;
“The assessment should be based on whether when compared to an ordinary person if made homeless, the applicant would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness”.
Submissions by Lambeth asserted that the relevant question of ‘functionality’ is whether the applicant’s circumstances would affect his functionality so as to make a noticeable difference to his ability to deal with the consequences of homelessness.
The court rejected adding an extra layer of complexity into a test which is already far from simple. The judge confirmed that “Lewison LJ’s observations (in Panayiotou) on functionality were made in the context that there must be a causal link between the particular characteristic relied on under section 189(1)(c) and the effect of homelessness.
In his judgement, Lord Justice Henderson noted that the reviewing officer had failed in her review decision to provide cogent reasons for why she had favoured the evidence of NowMedical over the evidence of Dr. Freedman. This was despite the fact that Dr. Freedman was better qualified, had addressed her mind to the specific legal question, and most importantly, had based her opinion on a personal examination of Mr. Guiste.
The court found that such a failure amounted to a breach of the principles of rationality and fair decision making.
However, the court also concluded that, based on the evidence before it, that the issue of priority need must not inevitably be determined in Mr. Guiste’s favour. It therefore did not substitute its own decision of priority need, but instead ordered that Lambeth should reconsider the issue of priority need by holding another review by a different officer.
Learning for advisers
This case highlights the importance of advisers obtaining medical evidence from an appropriately qualified medical professional to support their client’s case wherever possible. It is also vital that the adviser sets out the correct legal test for the professional and asks them to address this directly.
This case also highlights that, in all but the clearest of cases, the courts will be reluctant to substitute their own decision for that of a review officer. The court’s role is as a guardian of fair and rational decision making rather than as an arbiter of the facts.
A homelessness officer is supposed to compare the specific applicant with an ordinary person faced with homelessness when considering vulnerability.
Rother DC v Freeman-Roach  EWCA Civ 368 held that the ‘ordinary’ or ‘average person’ should be considered to be ‘ordinarily robust and healthy’.
The Supreme Court, in the combined cases of Johnson, Hotak and Kanu, as to how to approach this question, held that a housing authority should consider whether the specific applicant would suffer or be at risk of suffering harm or detriment which the ordinary person faced with homelessness would not suffer or be at risk of suffering, such that the harm or detriment would make a noticeable difference to their ability to deal with the consequences of homelessness. Many homeless persons have mental health and substance misuse problems, but the test is not how would the average homeless person with these problems cope? That was the approach that Hotak in particular put an end to. It was then a very hard test to qualify as vulnerable, under, if one had to be appreciably worse than an ordinary homeless person, when an ordinary homeless person may have experience on the street, and a swathe of existing issues. So the mental health and substance abuse issues of many a specific applicant should be enough to make them vulnerable.
Experience on the streets might be used to suggest that their history of street homelessness without particular harmful effects makes that person less vulnerable than the ordinary person, but that would have to be considered on a case by case basis.
An ordinary person, if made homeless, might have an initial disadvantage, in terms of lack of experience, but that person is not going to have severe physical or mental impairments, or substance misuse issues which are foreseeably likely to raise a person’s level of vulnerability when living on the streets.
Geoff Davies, CASCAIDr commentator