of the case
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.
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
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.
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.
“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.
court accepted that the review officer, when considering the issue of
vulnerability, had considered the correct legal principles as set out
v Southwark LBC and Panayiotou
v Waltham Forest LBC, namely;
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”.
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.
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
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.
court found that such a failure amounted to a breach of the
principles of rationality and fair decision making.
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
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.
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.
homelessness officer is supposed to compare the specific applicant
with an ordinary person faced with homelessness when considering
DC v Freeman-Roach
 EWCA Civ 368 held that the ‘ordinary’ or ‘average
person’ should be considered to be ‘ordinarily robust and
Supreme Court, in the combined cases of Johnson,
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.
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.
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.
Davies, CASCAIDr commentator