Archive for Care and Health Law Cases

Human rights underpin all social work and social care law – regardless of the Care Act, please note, or any suspension thereof – Goldsmith v Wandsworth LBC – [2004], Court of Appeal

https://www.bailii.org/ew/cases/EWCA/Civ/2004/1170.html

Lest anyone think that there is no duty to give reasons for a care planning decision in the current crisis, they will be assisted by reminding themselves of the Goldsmith decision from 2004 – from even before the Care Act came in, and when care plans were not even statutory, please note.

Under the Care Act, there is no duty to give written reasons for a council’s belief in adequacy or suitability either, but the Courts have long implied that duty in the interests of fairness and accountability. Examples are the RBKC (Savva) case, Cambridge (K) (on budgets) and several others. The current guidance envisages councils ‘stating’ their reasons for refusing to budge any further on a final offer on a care plan, in para 10.86.

Goodness knows what Corona Guidance will say, if the emergency provisions are triggered. But the good news is that the suspension of s24 and s25, and the modification of s18 regarding meeting needs (which has been provided for by the Coronavirus Act 2020, should it become necessary because of staff shortages), is not a deathknell for people’s legal rights to due process under the public law of this country.

Public law – the duty to act rationally (meaning taking all relevant considerations into account and having an evidence base), lawfully, and fairly (meaning transparently) is not capable of being suspended.

The issue in the Goldsmith case was about rights to make representations to panel, and involvement in the decision making process regarding a care plan (in this case, regarding a setting in which to receive care, given the lady had been very settled in a residential care home before a fall).

Nobody is suggesting that people need to be piling into panel decisions in person, based on this case, please note (not that there will be time for panel decision, we are guessing). But the reason that s27(2)(b) has not been included in the list of sections ripe for suspension or modification is very probably this case: it illustrates the right of involvement and participation in relation to any significant decision that is to be made about a person, by a public body.

76. Against this background, I have to say that I do not agree with the judge’s finding that Linda Goldsmith had no right to attend the LCCP meeting on 8 July 2003. The judge gives no reason for that conclusion, apart from stating that he did not consider the Guidance entitled her to attend. The reason put forward by Wandsworth, namely that the LCCP was discussing “clinical” issues does not to my mind bear examination. Although we do not know the identity of everyone who was present, the LCCP is a joint health and social services panel. I very much doubt if most social workers or social work managers would welcome being described as clinicians. But in any event, if the LCCP was discussing the Appellant’s care needs, that was manifestly a matter on which Linda Goldsmith had a contribution to make. If the matters to be discussed were purely clinical, what was the materiality of her written representations?

87. Judicial review is about process, and in my judgment the process here has been manifestly defective. This analysis, in my judgment, is sufficient to dispose of the appeal [by Wandsworth from the decision below].

Article 8 of the European Convention on Human Rights

  • …However, the judge accepted a submission made on Wandsworth’s behalf that whilst Article 8 was engaged in relation to the Appellant’s right to respect for her private life, if the decision was otherwise lawful, Article 8 added nothing to the debate. That was because Wandsworth’s interference was both in accordance with the law and necessary in a democratic society to safeguard the Appellant’s physical and psychological integrity. Speaking for myself, I am unable to accept that submission when applied to the circumstances of this case.
  • It is trite law that in addition to being in accordance with the law and necessary in a democratic society for the protection of the Appellant’s health, any interference by the State with her right to respect for her private life must be proportionate. There is no evidence, in my judgment, that Wandsworth gave any consideration to the principle of proportionality.
  • This is particularly marked in the meeting on 6 October. I have already set out in paragraph 52 above what can only be regarded as Linda Goldsmith’s practical, albeit emotional, expression of the Appellant’s Article 8 rights. I have recorded Mr. Kelly’s response. It is apparent to me that at no point in the meeting is there any evidence that either Mr. Kelly or any other Wandsworth decision maker had addressed their minds either to Article 8 itself or to the proportionality of Wandsworth’s response.
  • These are not academic considerations. It is not in dispute that a change to a strange environment for a person of the Appellant’s frailty could have serious, if not fatal consequences. The proportionality of the response is, therefore, of the utmost importance. In my judgment it is not good enough for Wandsworth, after the institution of proceedings, to produce evidence that this was a factor in its mind when it made the decision (whenever that was). In my judgment, the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it. And in that process, I find a complete absence of any suggestion that Wandsworth had addressed the Appellant’s Article 8 rights.
  • It is, in my judgment, and for all the reasons I have already rehearsed at length, no answer to this point for Wandsworth to suggest that this was not the point of the meeting on 6 October, which was to discuss Dr. Cottee’s conclusions. Dr. Cottee was not the decision maker, Wandsworth was. It is unexceptionable for Dr. Cottee to express his professional opinion, but it is for Wandsworth to conduct the overall balancing exercise, which gives weight to Dr. Cottee’s opinion in the wider context of the Appellant’s needs and rights. The point was put to Mr. Kelly point blank by Linda Goldsmith at the meeting, and his answer, in my judgment, is clear.
  • I would therefore, for my part, quash Wandsworth’s decision that the Appellant either should not be returned to alternatively should be removed from Mary Court. I would direct Wandsworth to reconsider its position with an open mind and on all the material available at the date of the fresh decision. I would expect the process of decision making to be transparent and the reasons for its decision to be clearly articulated in writing.
  • The merits of the decision are not a matter for this court. Given the history of this case, however, I nonetheless express the hope that what is left of the Appellant’s life can be lived out with the maximum of dignity and the minimum of psychological harm.
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HUGHES v Liverpool City Council, [2005]

An important case on human rights in the context of adult social care – carers, look to the effect of your continuing to be willing to shoulder that which the council would otherwise have to meet –

https://www.bailii.org/ew/cases/EWHC/Admin/2005/428.html

What happened

KH has severe mental and physical disabilities. They were summarised in his mother’s witness statement … as follows:

“Cerebral palsy; severe learning difficulties; poorly controlled epilepsy; an extremely erratic sleep pattern; Ataxia with poor co-ordination and fluctuating muscle tone with stiffness on the right side of the body; decreasing mobility over the last 4 years or so; double incontinence; no speech.”

He had been looked after by his mother since birth with some help from outside agencies. He lived with his mother in a 3 bedroom semi-detached house which is and had been for some time acknowledged to be unsuitable for his needs. His mother on his behalf had sought assistance from Liverpool City Council to assess his needs for accommodation and welfare services. She claimed that Liverpool’s response has been so inadequate as to be unlawful and/or has put the authority in breach of its statutory duties owed to him which on his behalf she can seek to have enforced by judicial review.

The judge held as follows:

“The duty [to provide care and accommodation that is suitable to his needs] had been owed to the claimant under section 21 since 6th April 2003. It will not be discharged at the earliest until August 2005. It should have been discharged long before… By failing to remedy what [was] identified as “a crisis situation” before now, Liverpool, despite their honest efforts, have in fact been in breach of the duty today owed to the claimant under section 21, and I so declare.”

He then made an order for some urgent respite under the precursor provisions for welfare services and home care before the Care Act was the law.

Human Rights

The judge said this, because damages were claimed.

I now turn to the claim for damages made by the claimant under section 8 of the Human Rights Act. The claim is said to be for infringement of his rights under article 8 of the European Convention of Human Rights. Article 8 provides:

“Right to respect the private and family life.

“(1). Everyone has the right to respect for his private and family life, his home and his correspondence.

“(2). There shall be no interference by a public authority with the exercise of this right except such

as is in accordance with the law

and is necessary in a democratic society in the interests of

national security,

public safety or the economic well-being of the country,

for the prevention of disorder or crime,

for the protection of health or morals, or

for the protection of the rights and freedoms of others.”

Accepting, without deciding, that Article 8 imposed on Liverpool a positive duty to promote the claimant’s private and family life, I am not satisfied that it has acted so as to be in breach of that right.

The claimant’s private and family life have been protected and promoted by the efforts principally of his mother but supplemented by carers paid for by Liverpool. Subject to the limitations necessarily imposed upon the claimant by his disabilities, he has been able to enjoy his private and family life. It is true that his mother has identified respects in which protection of his dignity and personal integrity would be improved were suitable accommodation to be provided. But in all other respects, as far as I can tell from the documents that I have read and the submissions that have been made to me, the limitations imposed upon his enjoyment of private and family life stem from his own condition.

The burden imposed on his mother has been very great, even intolerable.

But it is not she who is the claimant.

As a result of her efforts, the impact upon the claimant’s private and family life of Liverpool’s shortcomings in fulfilment of its statutory duties has been reduced to a level at which his rights have not been infringed.

In any event, I am not satisfied that the high threshold identified by Lord Woolf LCJ in R (Anufrijeva) v Southwark LBC [2004] QB 1124 at paragraph 43 has been crossed. Nor do I think it is necessary to achieve just satisfaction of the claimant’s claim that damages should be awarded. I refer to Lord Woolf’s analysis of the circumstances in which damages may be awarded in paragraph 55 of that decision.

It is possible that in the future matters may be different if despite this judgment Liverpool do not fulfil its duties under sections 21 and 29 of the 1948 Act so that the claimant’s rights under Article 8 become infringed. This may well be so if for example his mother is unable to continue to provide the care that she does owing to her own difficulties, and her efforts are not adequately substituted by Liverpool. But that is a matter for the future if and when it arises.

For those reasons, the application for judicial review succeeds to the extent that I have indicated. The claim for damages for breach of Article 8 fails. I will hear counsel on the detail of any consequential orders.

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TQ (application for welfare deputyship) v VT (by his LF the Official Solicitor) and Birmingham Children’s Trust and Birmingham and Solihull CCG [2019] EWCOP 58

Hearing Date: 13th September 2019

Mr P had severe health problems requiring 24 hour care, due to Lennox Gastaut syndrome. Mr P’s family situation was a complex one; he had no family connections, and after an aunt who brought him up died when he was 12, he had been placed in a care home. There he formed an extremely close and valuable bond with one of his carers (Ms TQ).

When Mr P turned 18 the Council moved Mr P to a placement.  TQ, prior to P’s move, raised the issue of her having contact with P after the move, and signaled her wish to be appointed as the personal welfare deputy.

She was concerned about who would look out for him once he was an adult in view of his lack of family. She was very fond of him and wanted to continue to do her best by him.

This request was not actioned, for reasons that do not appear from the report: TQ’s contact with P ceased from 5 April 2019 until shortly after 28 June 2019.

TQ applied to the Court of Protection and the Court directed the parties to make enquiries of the Placement to ascertain whether, in the event that TQ’s contact with P was restarted the management would seek to terminate P’s placement.

Management confirmed that it would not terminate. At that point the Court found no reason to believe that P lacked capacity to make decisions about the contact he had with others and ordered that P should have contact with TQ at reasonable hours of the day upon TQ giving one hour’s notice of her wish to attend.

Eventually the proceedings were resolved and the public bodies concerned withdrew opposition to the application for welfare deputyship, and the only issue was a costs application because of what the OS saw as very poor practice on the part of those bodies, which we have set out in full (as did the judge) for the public’s general education and awareness raising:

12. A common concern throughout the evidence of all these witnesses was a lack of understanding of the principles of the MCA 2005 and the need for proper person centered decision-making in relation to P.

In addition, the Official Solicitor makes two specific criticisms of Ms Williams and Ms Fairgrieve. Ms Williams made an unsubstantiated accusation that TQ had failed to promote P’s best interests and had sought to conceal evidence for the purposes of supporting her case.

In addition, in her witness evidence at paragraphs 31 and 32 [G68-G69] Ms Williams highlighted contact that had taken place between TQ and P. In her description of TQ’s contact with P, Ms Williams sought to paint a picture that TQ’s contact with P had no positive benefit. Staff at Placement 1 had asserted that there was no distinct change in P’s expressions on either contact session. Deploying this evidence in the manner it was done in paragraphs 31 and 32 was as unfair to TQ, as it was to P, because Ms Williams did not highlight that it was a noticeable feature of P’s presentation not to show any emotion. The fact that there was no distinct change in P’s expression was irrelevant to whether he was enjoying contact.

13. Ms Fairgrieve made an unsubstantiated accusation that TQ had made the PWD application in order to gain some form of financial advantage.

The background to this allegation is that there has been no transfer to Placement 1 of P’s financial arrangements and his benefits continued to be paid to ER. Ms Fairgrieve asserted, without any foundation, that the failure to transfer management to Placement 1 was related to the action or inaction of TQ. In fact, TQ had no involvement in the arrangements for P’s financial affairs nor did she have any power vested in her to make changes so that Placement 1 could manage his affairs. This was entirely within the remit of the statutory bodies who did not make an application to the Court of Protection for appointment of a property and affairs deputy and allowed considerable drift in making arrangements for the appointment of an appointee.

14. Ms Fairgrieve’s written evidence also contained this statement [G54]:

The current home decided that it would be in the best interests of the defendant to end carer relationships with the former child placement and start adapting to his adult life. The defendant had to adjust to his surroundings, new staff voices, new smells and new touch or feel.

Introducing an old voice without the other senses will slow down the progress the defendant is making in his life as an adult to adjust to his current and indefinite home. The defendant will be confused as to why I don’t hear that voice so often and why in a different environment.”

15. In exchanges between counsel for the Official Solicitor and the Judge, the Judge described this evidence as “chilling”. The Official Solicitor agrees. Yet Ms Fairgrieve’s approach was consistent with that of the Trust. In Ms Williams’ first statement [G37] she stated:

Staff at ER (including TQ) were involved solely in a professional relationship with P. It is our expectation that professional relationships are time bound, have a distinct role and purpose and have some structure. The transition and handover of P’s care went smoothly. The professional relationship with staff at ER has therefore come to an end. P has settled well into his new home and has started to adapt to his adult life and new surroundings.”

16. In summary, the evidence of both Ms Williams and Ms Fairgrieve was that there was a need to bring the relationship between TQ and P to an end for no other reason than the pursuit of a “policy” that professional relationships are time bound.

17. The CCG clearly knew of this decision. In the statement of Helen Corish dated 20 June 2019 (but signed by Helen Jenkinson) she states:

2. Placement 1 staff have decided that it would be in the best interests of P to end carer relationships at the former child placement and start adapting to his adult life. P needs to adjust to his surroundings and new carers. It was agreed that contact with previous carers may slow down his progress in adjusting to his new life in his current home. This was the Placement 1 following his move. Transition plan was for staff from ER to be involved in the transition from ER to Placement 1. No plan in place following his move.”

18. The CCG, as the relevant commissioner of the placement, should not have allowed this decision to stand unchallenged. As a public body it was there to promote P’s ECHR Article 8 rights and also to promote his best interests. Even if it is correct that the decision was made by Placement 1, the failure of the CCG to challenge this decision represents, at the very least, acquiescence with it.

19. The pursuit of this policy was a fundamental flaw. It infected the decision making of Trust, the CCG and Placement 1. The pursuit of the policy resulted in the requirements of section 4 of the MCA being ignored. The policy was the only relevant factor that appears to have been considered in determining TQ’s relationship and role in P’s life following the move to Placement 1. It is generous to describe the pursuit of this policy as the magnetic factor as this suggests that other factors were in fact weighed in the balance. The policy became the only factor in determining P’s best interests on issues surrounding his ongoing relationship with TQ.

20. The pursuit of the policy by Trust and the CCG resulted in the section 4 assessment of best interests being closed to other compelling factors. One such factor was the assessment of TQ and her motives. There was no suggestion in the written evidence filed by the Trust and the CCG thatTQ had ever acted contrary to P’s best interests. However, as already highlighted, during the course of the evidence, TQ was subjected to accusations that she had not acted in P’s best interests and that she was motivated by desire for financial gain, and not by his best interests. These were unsubstantiated accusations. They provoked no response of open outrage from TQ. She was able to show a level of calmness to rebut the allegations and in so doing, remained focused on P’s best interests.

21. This application, of itself, shows TQ’s ability to act in P’s best interests. In making the application to be appointed PWD TQ has opened up for scrutiny by the court a number of matters which directly related to P’s best interests, his health and welfare. P has no family, no effective advocate, and no one to argue his “corner”. Despite the undoubted pressure that TQ must have felt when told that because her professional relationship had ended she could have no further contact or interest in P’s welfare, she persevered with this application. She has filled the role of his advocate champion with focus, determination and dignity.

22. As his key worker, TQ had the knowledge and insight of knowing P’s moods. For someone so profoundly disabled, his ability (however limited) to communicate with someone else is likely to have enhanced his life and possibly alleviated his frustrations. It appears somewhat cruel to him, given the quality of the relationship between TQ and P and her willingness to continue with that relationship, that these characteristics of the relationship formed no part of the process of best interest decision making.

23. If BCT, the CCG and Placement 1 had followed good practice and the spirit of the MCA 2005 (i.e. placing P’s needs at the centre of best interest decision-making), all the positive factors above would have been obvious to them. The evidence is clear that all were blinded to these qualities in order to pursue a policy which was entirely closed to the other factors relevant to P’s best interests.”

The Court allowed TQ’s application and commended her for her dedication and commitment to VT.

The Judge found the placement management simply applied its own or the BCT’s ‘timebound professional relationships’ policy, which did not sufficiently allow for the consideration of Mr P’s best interests.

The placement staff should have considered standards set out in the MCA, and the CCG should have challenged failure to do that.

The Children’s Trust suggested it “probably overstates things to describe the reservations about TQ’s role as being referable to a ‘policy’ on the part of BCT” but was instead a reaction to a specific set of circumstances it had not encountered before. With hindsight they said they recognised there could and should have been greater recognition of TQ’s role and what she had to offer P in terms of companionship and friendship. They acknowledged a broader analysis of section 4 considerations would have led to a greater degree of involvement on TQ’s part, during  transition and beyond, especially in the absence of family members of P’s own. They also accepted a tighter focus should have been applied to the best interests decision-making process in this case, in conjunction with the CCG and Placement 1.”

The judge said that the BCT had rather minimized the complete absence of records of best interests decisions by reference to the amount of other records which were made.

The court said this of one witness:

“She presented as rigid in her thought process, guided entirely by her belief that it was inappropriate to blur the boundaries of professional carer and friend in any circumstances, referring to TQ as “holding all the power and P as not any”, despite agreeing TQ had never misused that power.

The CCG (which had presumably taken over responsibility for the man when he became 18) initially contended that it was solely the decision of the provider, Placement 1, on the question of contact.

Of that provider’s witness, the Court said this:

“Despite admitting there had been no assessment of capacity in respect of contact she said her Operations Manager, Samantha Kilia, made the decision that as TQ’s role as a carer had come to an end and she was not a relative it was “a nonsense to say she could visit”. She supported her manager’s decision. She was asked how that policy decision placed P at the centre of a best interests decision and responded it was a safeguarding risk. She said she and her manager assessed her as being a risk “because she is not a relative”. Although she was aware TQ had taken him on holiday she did not regard that as altering the fact her role was professional and had come to an end.”

The CCG It accepted they should have taken a more robust approach to seek to influence the decision of Placement 1 as one of the bodies involved in the decision making under the MCA once aware after 11 June 2019. It accepted a best interests meeting on contact should have taken place in light of the decision to stop contact and all three bodies were responsible for arranging such a meeting.

The judge also said this:

“To fail to consider the benefit to P of TQ spending time with him, helping to stimulate him, feed him, talk to him and to show her genuine care of him, when he had no other single person in his life who was willing to do that, outside of a professional relationship  which had commenced in 2018 or 2019, was bewildering and shocking. The very fact that P is quiet and shows little reaction to those around him highlights the importance of him being afforded quality time by someone who cares for him when his needs might otherwise be overlooked in an environment where others might demand more attention by being more vocal. I have set out the submissions made by the OS in this regard in full as I accept them in their entirety. Each point is well made and accords with the view of the Court.

…  TQ’s application highlighted serious flaws in the procedures and practice of the CCG, BCT and Placement 1 in complying with the MCA 2005. Only if there is good practice can we trust our agencies and professionals working within them to deliver satisfactory standards of care to some of the most vulnerable people in our society and to protect their human rights. The extent of the failings in this case were clear only once the witnesses had been cross-examined by the OS and TQ due to the poor quality of the written evidence and the absence of rigorous assessment of decisions taken and the procedures adopted prior to the final hearing. Had TQ not made her application the plight of P in so many respects might still have gone unnoticed or unchallenged, if decision-making in respect of him had proceeded in the same fashion as hitherto.

…  The Mental Capacity Act Code of Practice sets out precisely what should be recorded by those professionals involved in the care of a person who lacks capacity when working out the best interests of that person for each relevant decision. Records should be made of how the decisions were reached, why the decisions have been taken, who participated and what particular factors were taken into account. The record should remain upon the person’s file.”

The CCG accepted there was no evidence that a capacity assessment and best interests meeting had formally taken place prior to P’s move to Placement 1. This failing was deeply concerning to the Court. The Court was pleased with the assurances of the CCG that

“A piece of work has been commenced by senior members of the quality team at the CCG to put in place robust assurance processes in relation to new placements and the requirements of the MCA. Consideration is also being given to training needs of those individuals involved in commissioning packages of care on the requirements of the MCA and a training programme will be put in place once these have been identified. It is anticipated that this will help to ensure that a person-centred approach to decision-making is ensured, having full regard to section 4 MCA, in a way which, very regrettably, appears to have been lacking in this case, both during transition and as to contact.”

HHJ Clayton highlighted that the extremely poor record keeping led to poor care decisions; for example Mr P did not even have his capacity assessed until three months into his placement, there was no proper plan put in place for his initial transition between child and adult services; there was a failure to apply for authorization of his deprivation of liberty under schedule A1 MCA 2005 prior to his move to Placement 1 (so that he was unlawfully deprived of his liberty and without the protection of the Deprivation of Liberty Safeguards for a period of time). The list went on.

HHJ Clayton concluded that ‘The failure to comply with the MCA 2005 was not a technicality. It led to a wholesale failure of best interest decisions’.

Ms TQ was duly appointed as Mr P’s welfare deputy with wide powers save as to medical issues.

On the matter of costs, the judge said this:

“Had the information been set out appropriately in written evidence it is likely all would have realized prior to the commencement of the hearing that this case did fall into those unusual circumstances where there is a real need for P to have a PWD to ensure he is at the centre of best interests decisions in the future and that TQ is the ideal person to take on that role for P…. I have taken account of the change in position by the parties without the requirement for TQ to give evidence, with only their own evidence causing the BCT and the CCG to decide TQ’s application should not be opposed. I have come to the conclusion that the costs of the OS should be borne in full by the BCT and CCG in equal shares.

CASCAIDr does not get involved in this sort of case, because we are not a law firm and we cannot represent people in contentious litigation. However, we do work with law firms that provided legally aided services, in the Court of Protection and in the Administrative Court for judicial review. So please feel free to seek initial advice from CASCAIDr via our referral form on the top bar menu of the site.

The report can be found here

https://www.bailii.org/ew/cases/EWCOP/2019/68.html

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Sherwood Forest Hospitals NHS Foundation Trust & Anor v H [2020] EWCOP 5

Hearing date 14th January 2020

This report considers an application to the Court of Protection.

What Happened

Mrs H was 71 and lived with her daughter Miss T and had numerous mental health issues.

She had been known to the local mental health team since 2014, when she had been hospitalised under section 2 and then 3 of the Mental Health Act.

During this stay, she was diagnosed with bipolar disorder. Although initially it appeared that Mrs H accepted her diagnosis, she displayed deceptive tendencies. She ‘deceived the medical establishment into believing she was taking her medication when in fact she was not’ and did not effectively engage with her diagnosis. She was discharged in December 2014.

Mrs H became aware in October 2018 that she had squamous cell carcinoma (‘SCC’ – which manifested as a growth on her cheek) which would require surgical removal under general anaesthetic. Again, she displayed duplicitous tendencies – she engaged with surgery and reconstruction plans, but failed to attend any follow up appointments, and often ‘entirely rejected the diagnosis of cancer’.

On 30th May 2019 Mrs H was assessed as lacking the capacity to make decisions in relation to her medical treatment. Despite this happening in May, the application to the Court of Protection to secure authorisation for the required treatment, did not happen until the end of December.

Hayden J highlighted that treatment was not progressed sufficiently quickly, because clinicians were unclear on the circumstances in which Mrs H could be forced, physically and by coercion if necessary, to attend for her treatment and, if so, how that might be achieved.

What was found

Hayden J surmised that the delay was unacceptable. He stated ‘that whilst avoidance of delay is not [explicitly] incorporated into the framework of the Mental Capacity Act in specific terms, it is to be read into that Act as a facet of Article 6 and Article 8 [human rights]. It is self-evident and, indeed, striking, that time here was of the essence and delay was likely to be inimical to Mrs H’s welfare. Not only inimical but as it has transpired, potentially fatal.’ (as the growth had grown).

He said the delay was inconsistent with Mrs H’s welfare, and could not see why an application was not made to the court much sooner than December. The Mental Capacity Act creates an obligation to deploy all reasonable steps available in order to promote a return to capacity.

Hayden J stated ‘a reasonable period before making an application might have been a week, two weeks, three weeks, but it was certainly not 6 months.’

Mrs H, her daughter, and her doctor Mr Pollock devised a plan, reflected in her care plan, for coercive treatment that Hayden J considered to be ‘both unusual as well as intensely sensitive’, and in her best interests.

He stated that the plan was ‘the appropriate and kindly way forward and one that respects, in different ways, Mrs H’s dignity, her autonomy and the very grave circumstances that she finds herself in’.

The plan involved some subterfuge but was benign and the least restrictive way forwards at that point. It had initially been contemplated that Mrs H should be sedated and physically coerced into treatment but she was physically acquiescent although definitely not capacitously agreeing. Sedation remained the Trusts’ fall-back position.

The judge added the following from revised guidance about WHEN a medical treatment issue should go to the CoP and not just be decided on the basis of best interests process and thinking.

8. If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:

(a) finely balanced, or

(b) there is a difference of medical opinion, or

(c) a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or

(d) there is a potential conflict of interest on the part of those involved in the decision-making process

(not an exhaustive list)

then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.

9. Where any of the matters at paragraph 8 above arise and the decision relates to the provision of life-sustaining treatment an application to the Court of Protection must be made. This is to be regarded as an inalienable facet of the individual’s rights, guaranteed by the European Convention on Human Rights (‘ECHR’). For the avoidance of any doubt, this specifically includes the withdrawal or withholding of clinically assisted nutrition and hydration.

10. In any case which is not about the provision of life-sustaining treatment, but involves the serious interference with the person’s rights under the ECHR, it is “highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of [capacity and] best interests, with [the person] having the benefit of legal representation and independent expert advice.”[5] This will be so even where there is agreement between all those with an interest in the person’s welfare.

11. Examples of cases which may fall into paragraph 10 above will include, but are not limited to:

a. where a medical procedure or treatment is for the primary purpose of sterilisation;

b. where a medical procedure is proposed to be performed on a person who lacks capacity to consent to it, where the procedure is for the purpose of a donation of an organ, bone marrow, stem cells, tissue or bodily fluid to another person;

c. a procedure for the covert insertion of a contraceptive device or other means of contraception;

d. where it is proposed that an experimental or innovative treatment to be carried out;

e. a case involving a significant ethical question in an untested or controversial area of medicine.

12. Separately to the matters set out above, an application to court may also be required where the proposed procedure or treatment is to be carried out using a degree of force to restrain the person concerned and the restraint may go beyond the parameters set out in sections 5 and 6 Mental Capacity Act 2005. In such a case, the restraint will amount to a deprivation of the person’s liberty and thus constitute a deprivation of liberty.[6] The authority of the court will be required to make this deprivation of liberty lawful.

13. It requires to be stated clearly that those providing or commissioning clinical and caring services should approach the Court of Protection in any case in which they assess it as right to do so.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full report can be found here

https://www.localgovernmentlawyer.co.uk/healthcare-law/174-healthcare-features/42974-not-only-inimical-but-potentially-fatal-medical-treatment-cases-and-delay

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R (on the application of LEWIS) v SENIOR CORONER FOR NORTH WEST KENT [2020]

12/02/2020

What Happened

Below, highlights of proceedings by way of judicial review of a coroner’s decision.

Ms L suffered from mental and physical health issues which were exacerbated by a 2010 operation. After the operation Ms L suffered significant weight loss and led to her being sectioned, briefly.

Between 2010 and 2016 her weight was mostly stable, but Ms L still had visits to psychiatric units, and generally struggled to co-operate with hospital staff (eg refusing medication or giving blood samples).

In February 2017 her health deteriorated to the point where she was readmitted to the psychiatric unit. In July she was found partially conscious; she was undernourished, had poor oral hygiene and bed sores. She had lost a significant amount of weight, her medical records were not properly maintained, and clearly her hydration and nutrition policy/plan was not being sufficiently followed.

Just under two weeks later, she died. There was an inquest into her death.

A doctor questioned the aftercare she received at the unit, and Ms L’s family also criticised the unit – stating that they failed to keep proper records of Ms L’s decline, failed to seek proper advice and failed to follow their own policy on nutrition. However, the psychiatric unit stated Ms L was unco-operative and they had trouble feeding her as she had malabsorption anyway.

It was concluded by the jury that Ms L’s cause of death was malnutrition. The coroner highlighted concerns surrounding the communication between psychiatrists and doctors, and the inadequate care they provided at the unit.


During the coroner’s summing up, the claimant queried the coroner’s decision not to allow the jury to rule on the issue of neglect. The coroner stated that it would not be appropriate in this case citing another earlier case as informing that view (R. v HM Coroner for North Humberside and Scunthorpe Ex p. Jamieson [1995] Q.B. 1).

What was found

The Jury’s decision was quashed, and a new inquest would take place.

The claimant only realised that the issue of neglect would not be discussed by the jury when the coroner was summing up. The Administrative Court said that it would have been better practice if the coroner had made his intentions clear at the beginning of proceeding.

Given the surrounding circumstances Ms L passed away under – malnutrition, bad record keeping etc, it was not possible for the Court to understand why neglect was not an issue properly to be left to the jury, or how it could have been detrimental for them to consider the issue.

Therefore the coroner’s closing off the option of a finding neglect from the jury when it should have been properly open to them, was unreasonable, and therefore the inquest was flawed. The Jury’s decision was quashed, and a new inquest would take place.

Points for the public, service users, families and safeguarding

When someone dies in the care of the State an inquest is not always held, but in this situation one was.

Section 1 of the Coroners & Justice Act 2009 requires a Coroner’s investigation to be held if the Coroner has reason to suspect that a person has died:

A violent or unnatural death;

A death, the cause of which is unknown; or

The deceased died while in the custody or otherwise in state detention – this also includes those subject to Deprivation of Liberty Safeguards and the Mental Health Act 1983. The Coroner is under a duty to carry out preliminary investigations to determine whether there then needs to be an inquest hearing.

The main thrust of an inquest is how the person died? And sometimes, by what means and in what circumstances did they die?

The Coroner here had seemingly focused on whether any aspect of the care had been negligent, but neglect is the concept that is the essence of an inquest that might involve system failure, not negligence.

In this context “neglect” means a gross failure to provide adequate nourishment or liquid; or provide or procure basic care or medical attention or shelter or warmth for someone in a dependent position who cannot provide it for himself.

Failure to provide basic care for a dependent person whose physical condition is such as to show that he obviously needs it, may amount to neglect. The required treatment can be for a person’s mental condition if that is the area which obviously calls for medical attention, and a failure to provide mental health treatment can result in a neglect finding. However there cannot be a finding of neglect unless there is a clear, causal connection between neglect and the death. Most cases of neglect will be cases where there has been a failure to provide care rather than cases of providing the wrong type of care. “Neglect” in the coronial sense has nothing to do with “negligence” as in civil negligence.

The reason bereaved people sometimes want a finding of neglect is that changing a culture within an organisation or getting a ‘lessons learned’ approach embedded is very hard if nothing has been found to have happened that was less than adequate.

There is no appeal from an Inquest, but there is judicial review, on the normal grounds of irrationality, error of law, etc.

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PB and JB v Priory Group Ltd [2018] MHLO 74 – May 10, 2018

This was a case for damages for unlawful psychiatric detention and restitution of fees demanded for that ‘service’.

PB found herself compulsorily detained at the Priory Hospital during an outpatients’ appointment in September, 2016.

She was detained under s5(2) Mental Health Act 1983 under a provision that applies ONLY to the detention of in-patients (emergency detention).

The heading of Section 5 refers to patients “already in a hospital” and s5(2) itself is expressly limited to “a patient who is an in-patient”.

PB was at the Defendant’s hospital simply to discuss a lower dose of her medication.

Within 15 minutes of the start of that appointment she was told that she was being detained under Section 5(2) and could not leave.

She ran out of the room and was prevented from leaving the facility by hospital staff and taken upstairs and ‘given’ a bed.

Her husband who was with her was required to make an immediate down-payment of £10,626, in respect of the Priory’s daily rate of £834.

She was detained at the hospital for 17 days.

  • The first 72 hours was purportedly done under Section 5(2).
  • The next phase was done under no power at all for just under seven hours.
  • The last phase was done under Section 2 of the Act (but without any explanation being provided on the Form A2 for not consulting a doctor who knew the patient)

until discharged by her Responsible Clinician on 17 October 2016.

When the Hospital later pursued recovery of around £3,000 in outstanding fees, the couple consulted solicitors who advised a complaint.

After a complaint was rejected by the hospital, the couple brought proceedings against the Defendant’s Priory Hospital in North London. The woman claimed damages for the whole period of her stay for unlawful detention at common law and contrary to Article 5 ECHR.

The human rights claim was predicated on the basis that the Defendant (albeit a private hospital) was a public authority for the purposes of Section 6 of the Human Rights Act 1998 when compulsorily detaining patients under the Mental Health Act 1983.

The man claimed restitution of the fees he had paid on the basis that it would be contrary to public policy to allow a tortfeasor to profit from its wrong.

Procedings seeking permission to bring the claim, as required by s139, were compromised, and the claim was allowed to proceed. An extension to the period for issuing County Court proceedings was agreed. The Defendant made a CPR Part 36 offer of £11,500 plus legal costs on 27 April 2018 which the Claimants accepted on 11 May 2018.

The Claimants’ solicitors had valued the claim in the Letter of Claim to the Defendant “at the same rate as you charged our client for remaining forcibly in your hospital, which is £834 per day.”

However, the Claimant was advised to accept an award calculated on the basis of a higher level of compensation for a shorter period – the 72-hours of the detention under s5(2) only, plus the next 6 hours 45 minutes. The reasoning was that, as against the Hospital, there was a litigation risk that the application under s2 that followed might have been held to have appeared to be “duly made” and thus lawful for the purposes of s6(3) of the Act.

Following compromise of the claim, the settlement was notified by the Medical Protection Society to the Compensation Recovery Unit. This is part of the DWP. If you get damages as a result of clinical negligence the CRU must be notified of the details of your claim by the organisation (or person) paying the compensation (the compensator). The CRU records all welfare benefits you receive as a result of your injuries. If you are awarded compensation then the compensator is liable to repay the DWP for any injury-related benefits you receive to prevent double compensation through the award and the benefits. 

It was subsequently accepted by that unit that this settlement did not fall within the scheme, it not being clinical negligence that was the problem here.

The Hospital did not continue its pursuit of the £3,000 arrears.

[Matthew Seligman of Campbell Taylor Solicitors has provided this summary to a number of sources.]

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RE P (URGENT MEDICAL TREATMENT) (2020)

Court of Protection  (Hayden J) 17/02/2020

This is a case about an incapacitated person’s best interests in the situation where treatment that was on offer to the incapacitated patient could not easily said to be in her best interests, even though it would keep her alive, given the disadvantages of the treatment for someone in her very much deteriorated condition.

The Court of Protection was presented with a case about an elderly lady, P, suffering from dementia and chronic renal failure. P was supposed to have dialysis three times a week but she was often distressed by the process and sometimes believed it to be a punishment.

There was a meeting in February 2020 between the family and a number of health professionals. It was decided that it was unethical to force dialysis treatment on P when she found it to be unbearable, and that she was to receive the treatment when and only when she was willing to participate. She was often physically exhausted by it.

However, one member of the family objected to the agreement (for reasons unknown) and so the Court of Protection was asked to make a declaration about P’s future treatment.

The decision was held that P was to determine the extent of her dialysis treatment. The treatment was often confusing for her and sometimes called for her restraint. It is thought to be particularly unsuitable for a person suffering dementia.

The court declared that P’s treatment should ideally take into account what she would have wanted for herself. She had been a Catholic and her faith and belief in the sanctity of life were still of importance to her, even through the dementia, so it was decided that she would have wanted to live – and she did accept the treatment sometimes.

The family were seen as having bravely and compassionately navigated through very tricky situations and decisions to arrive at the best possible solution for P – one that was sensitive and kindly. They were commended for their honesty and integrity in dealing with these difficult decisions.

The court granted a declaration to the effect that it would be in her best interests when she seemed willing to accept the treatment but not to force it on her when she did not.

[2020] 2 WLUK 194

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Antoniak v Westminster City Council

Well, goodness me, what a Happy New Year! A council finally got successfully judicially reviewed for failing to follow the Act and statutory guidance with regard to ignoring human assistance in meeting identified needs (it also managed to fail to follow the logic of its own forms, incidentally!).

In Antoniak v Westminster City Council, the claimant was a young man with intermittent psychosis and related housing issues, who’d also been run over, hospitalised for a long time, and was now wheelchair bound.

He was ultimately temporarily housed under the Housing Act, physically within another London borough, once his immigration status had been clarified and permitted recourse to that legislation.

Using what was no doubt a strengths-based approach, the assessor fell into the trap of suggesting that resources to which he had current access, were such as to reduce the impact of his inabilities on his wellbeing, so that he was ineligible for support.

That is not the law.

If one’s assessment has been formally paused to see what prevention and reduction can do for reducing impact or inability in a long term reliable way, that is one thing, and is permitted.

But if one’s eligibility falls to be determined at any particular date, that can only be after one’s NEEDS have been identified and gathered in, and the Guidance is clear that human assistance must be ignored at that point, for the purposes of the next decision in the statutory linear approach to assessment: ie the inability to achieve test, and the impact test, for eligibility purposes.

He was found by his assessor to be unable to achieve in two or more domains, but the impact was not regarded as significant, because it either was being met or ‘could’ be met, if he moved, by charitable resources.

Oh dear!!

The assessor had said ‘he currently has no needs in this area’ (referring to support with cleaning and maintenance, and meal preparation) because he could get them met by charitable support and they were being met currently because of the nature of the accommodation he was then IN.

The council did NOT say that he was eligible but that nothing was needed, because of what could be obtained locally. If it had said THAT, that might have been defensible, but of course the care manager would still have had to have done a care plan, because that follows on unavoidably from a finding of eligibility. That plan would not have been able to be signed off unless the council was sure that the services they were signposting too, just hopefully like, would actually meet the need.

In the judgment, a Mr Ockleton, sitting as a judge of the High Court, said this:

24. …it is clear both from the structure of the Act itself and from assumptions which might be made about the general utility of the assessment process, that the word “needs” is to be interpreted in such a way as to ignore any existing way in which needs are being met.

…Part 1 of the Care Act makes the individual, and the individual’s wellbeing, the starting point of the delivery of such services as are required. In this context it would be surprising if a needs assessment were not also intended to be primarily about the individual, rather than merely about some residuary part of an individual’s needs that were not currently being met…

…It follows that a needs assessment will not fulfil the requirements of s.9 if it does not include all the individual’s needs, whether currently being met or not. It follows also that the determination of the eligibility criteria will not fulfil the requirements of s.13 unless the eligibility of needs currently being met is determined, as well as the eligibility of unmet needs.”

…[since] “the question of impact on his wellbeing should have been made without regard to the way in which needs were being met at the date of the assessment”, the judge thought that the appropriate remedy was a declaration that the assessment did not discharge the defendant’s duties to the claimant under sections 9 and 13.

The judge refused to make a mandatory order compelling the defendant to draw up a Care and Support Plan and to provide the claimant with care and support forthwith because there was, in light of the judgment, no valid needs assessment, and a Care and Support Plan emerges out of the identification of eligible needs following a needs assessment.

He also acknowledged that Westminster may not have then have owed any duty to the claimant under the Care Act, because of his having been housed in Islington – the law is clear that the liability for Care Act needs moves with the client, even if the accommodation provided under the Housing Act is temporary. The invalidity of the prior assessment still mattered though, because of the provisions in s37, relating to those with care needs who move between local authorities.

Points for councils doing a Three Conversations or Strengths-Based approach

It’s public law that you want to think about, in light of this case.

You wouldn’t want your whole assessment workload to have be re-done, all over again, we are surmising – but that is what invalid assessments, once judicially reviewed, IMPLY. And there is now a right to restitution for periods of invalidly assessed needs!

That means money will have to be paid and will reduce all the savings that interim management consultants will have attracted high salaries for promising, by institutionalising go-slows, informal conversations about needs, and strategies based on persuading people or carers that there’s no real point in being assessed…. that is, a kind of rule of law karma, it seems to us.

The Care Act made the identification of needs, and then their status in relation to the eligibility threshold, and then care planning for meeting them, an essentially linear task, although the vision was that social workers and other staff would be well enough trained to be able to do generic and whole-family based and holistic assessments, in time.

CASCAIDr’s management’s Care Act training since early 2015 has made it clear that whilst signposting needy people to resources that could help, and networks that might help, is all very well at the first contact and pre-assessment stage, the solutions being suggested do have to be workable, and accessible, in terms of the known characteristics of the applicant for services.

A person might be having ALL their needs met by reason of funding them, privately, or lucky enough to have a wrap around family network, but we are all expected to know that we cannot assume that a person would carry on spending their money or a family, their time, in that way, and that is why those factors have to be explored and do not go to eligibility, but only to the duty to meet need, after proper and lawful probing and thinking!

When a person who’s got some current support or a person who’s engaged with prevention, next comes back for their assessment ‘proper’, then if the current support or preventive measures were short term in nature, it is just possible that these inputs may indeed have helped mitigate a longer term or more chronic need; but it’s equally possible that they may just have put a bandaid on a problem whilst they were available, and that as soon as they cease to be available, the person’s situation will rocket way up there again, in terms of impact.

It must be obvious that targeted prevention does not go on forever (whether charitably provided, for free or paid for by some or other agency) because new people are being signposted to the services all the time.

It’s helpful to think of this as one would regarding the well managed need principle for CHC status: if the problem has been managed away for good, then the need can be regarded as having been resolved; but if the prevention or other human assistance needs to be funded on a longer term basis or is unreliable, and the problem would pop up again without it, then the need still exists. The ‘inability to achieve’ test is explicitly defined to exclude the availability of human assistance, and thi case establishes, as predicted, that the impact test must be considered in precisely the same vein.

A link to the case can be found here:

https://www.bailii.org/ew/cases/EWHC/Admin/2019/3465.html

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R on the application of SH v Waltham Forest LB

Facts of the case

SH travelled to the UK in 2012 having fled trafficking for the purposes of sexual exploitation. She was granted refugee status in 2014.

She applied to WF as homeless in September 2014. WF accepted the main housing duty and after was eventually provided with permanent accommodation in Ilford in May 2016.

In May 2017, SH was served with a no-fault eviction notice requiring her to vacate the property.

In August 2017, SH was offered and accepted a property in Tottenham. SH and her daughter had considerable issues with the property, in particular the fact that the communal grounds to the flat being used as an open air brothel where sexual activity could be seen by SH and her daughter. Evidence from the school and a psychiatrist’s report had provided evidence on the effect on SH’s mental health and her daughter’s development.

In July 2017, SH approached WF asserting that she was homeless.

In October 2018 WF made an offer of a property in Kettering under section 189B(2) in discharge of its relief duty.

SH refused the offer.

The issue in dispute

The issue before the court was whether this was a re-application by SH, in which the main duty under section 193(2) was still owed, or whether it was a fresh homelessness application, in which case the ‘lesser’ duty under section 189B(2) (to take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least six months) was owed and had then been discharged once SH refused the offer.

Central to this issue was whether the offers of the properties in Ilford and Tottenham were made in accordance with the provisions relating to private rented sector offers, contained in section 193 (7AA) and (AB) of the Act.

The Law

The section 193 duty can be discharged under section 193(7AA) of the 1996 Act if the applicant, having been informed in writing of the matters mentioned in section 193 (7AB) accepts or refuses a PRS offer.

Thus, to be a valid discharge of the section 193 duty, the following conditions need to be met:

There has to be an offer of a property in writing, which warns the applicant of the matters in section 193(7AB), namely:

  • The possible consequences of refusal or acceptance of the offer;
  • The right to request a review of suitability;
  • The effect under section 195A of a further application to an authority within 2 years of acceptance of the offer.

In addition, the property has to comply with the conditions in section 193 (7AC) namely,

  • It has to be an AST for a fixed term of at least 12 months,
  • It has to be made with the approval of the authority in pursuance of arrangements made by the authority with a view to bringing the authority’s duty to an end.
  • The authority has to be satisfied that the property is suitable (section 193 (7F).

The Court’s decision

Given that WF could not produce a copy of the offer letter, the court concluded that the offer letter for the Ilford property had not been sent and therefore that the offer did not comply with section 193 (7AA) and (7AB) of the Act and that therefore the duty under section 193(2) was not discharged in May 2015.

In terms of the Tottenham property, the court found that the property was never suitable accommodation. The court stated that given the particular characteristics of SH and her daughter, the offer should never have been made. It therefore concluded that as the Tottenham offer did not meet the statutory requirements of section 193 (7AA) and (7AB) and that therefore the duty under section 193(2) was not discharged in August 2016.

The court decided that section 189B(2) did not apply to AH because she was still owed the section 193(2) duty following her original application in 2015. The application made in July 2018 was not a fresh application. By regulation 4 of the Homelessness Reduction Act Regulations 2018/167, the amendments made do not apply in relation to an application for assistance made under section 183 of the Housing Act 1996 before the 3rd April 2018.

Learning Points for Advisers

Most advisers will be aware that the Localism Act 2011 allowed for local authorities to discharge their main housing duty by offering an assured shorthold tenancy in the private sector for at least 12 months.

This decision illustrates the importance for advisers of checking that a PRS offer made in discharge of the main housing duty has been validly made, not only in terms of the suitability of the accommodation but also by checking that the contents of any offer letter meet the requirements of 7(AB).

This will be particularly relevant in cases, as with the above case, where applicants have been evicted from a PRS property offered before the 3rd April 2018 and are now re-applying as homeless to the local authority.

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Guiste v The London Borough of Lambeth

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.

The decision

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 [2018] 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

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