Mangion v London Borough of Lewisham [2008] EWCA Civ 1642

Case No 2008/0018[2008] EWCA Civ 1642
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE KNIGHT QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 11 th December 2008
Before
LORD JUSTICE WARDLORD JUSTICE RICHARDSLORD JUSTICE AIKENS
Between
MANGIONAppellantLONDON BOROUGH OF LEWISHAMRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms J Maxwell (instructed by Messrs Morrison Spowart) appeared for Appellant.Ms J Henderson (instructed by London Borough of Lewisham) appeared for Respondent.
Judgment
[1]Mrs Sandra Mangion is homeless. She applied therefore for help from the local housing authority to provide her with accommodation. The issue in this case is whether she is in priority need of accommodation. That is defined by Section 189 of the Housing Act 1996 in these terms, so far as they are material:
“189(1) The following have a priority need for accommodation: c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason”
[2]Mrs Mangion is in her late fifties, so she does not qualify as a result of old age, and the issue in the case is therefore whether she can bring herself within some mental illness or handicap or physical disability or other special reason.[3]The local authority had her application which, as it was initially presented by her, stated that the medical conditions upon which she relied were her alcohol problems and her back problem. The housing officer sought advice and the housing medical adviser expressed the opinion on 15 February 2007 that her back problem was not severe or uncontrolled so as significantly to impair her reasonable mobility. As for the alcohol issues which had endured for some twelve years, there was nothing to suggest that she was addressing those problems and that was therefore considered to be the behaviour of choice.[4]The result was that on 23 February 2007 the housing options assessment officer concluded that she was not in priority need. Exercising her right to review, she supplemented her case with the help of her solicitors. In particular, they wrote on 21 June 2007 and they enclosed medical evidence to support their client’s claim. Those reports were a report from her general practitioner dated 18 June 2007 and the last incapacity for work report from the Department of Works and Pensions dated 7 December 2006, a report prepared after a consultation of some 24 minutes by the medical adviser to the Disability Tribunal Dr Alaparti. In that letter of 21 June 2001 the solicitors commented on the back complaints and acknowledged that, whilst it was accepted that her back condition was not severe to the degree she required medication or specialist treatment, nonetheless that condition did affect her mobility and stability and her ability to look after herself on a daily basis. The general practitioner’s report referred to an X-ray, but there was no confirmation of the results of that X-ray and no information from the GP.[5]More significantly, in the context of the case as it has now developed, the solicitors were writing:
“In relation to our client’s alcohol problems we refer you to the DWP report and in particular page 15 of 20 which states that our client’s mental health problems caused by her alcohol dependency does cause severe disability.”
[6]There are other references in that letter, repeating the link between the long-term alcohol addiction and the other problems from which this lady suffers:
“…sufficient enough to bring about a mental vulnerability and as such she should be given a priority for housing.”
That material was placed before the reviewing officer. He made, or attempted to make, further enquiries both of the applicant and of her GP, but was not auspiciously successful in either of those endeavours. In the result, he wrote, after his customary letter indicating the decision he was minded to make, his final decision was expressed in a long five-page, closely typed letter, dated 29 August 2007.[7]This case arrives in this court because the disappointed applicant exercised her right of appeal to the county court. There the matter came before HHJ Knight QC in the Central London County Court on 13 December. He dismissed her appeal. Rimer LJ, on a renewed application for permission, gave permission to appeal -- it being a second appeal -- not because of any important point of practice or principle, but because he concluded, given the unhappy circumstances of this lady, that there was a compelling reason for us to review it. And thus the question for us is whether there was some error of law in the decision making by the reviewing officer.[8]The case is brought essentially on these grounds. Firstly, there is a specific complaint that the reviewing officer completely misunderstood and misinterpreted the medical report of Dr Alaparti. Secondly, that he failed to take into account relevant factors clearly appearing in that report. Thirdly, and probably representing grounds 1 and 2 rolled up together, the fact that the decision was simply perverse. And finally, that he failed to step back, look at all the circumstances and take a composite view of her predicament.[9]The reviewing officer began his decision-making by observing that he had taken into account all relevant considerations including, he said, the law, and all the representations put to him up to 17 August, which would have included therefore the comments on his letter indicating that he was minded to make this adverse decision.[10]He then referred to the letter of 21 June with the representations as to the back problems and alcohol dependency, and he said this, and this gives rise to the first criticism of his decision:
“Further to this, you made reference to page 15 of the medical record form dated 7th December 06. In relying on page 15 of the medical report you state that your client’s mental health problems caused by her alcohol dependency do cause severe disability. Looking at page 15 it does not say that. What it does say is that the customer’s mental health problems cause severe disability. Adding to this it does not say that Ms Mangion suffers from a severe disability.”
He repeated observations of that kind at various stages throughout this letter. For example, on page 2 he was again referring to the mental health problems causing severe disability and not necessarily stating that she is suffering from a disability. It is a theme to which he returns. And so, one has to look to page 15 of that medical report to understand the point.[11]Dr Alaparti, who was examining this lady with a view to assessing her right to disability benefits (which is, therefore, a wholly different exercise from that with which we are directly concerned, namely Housing Act vulnerability), carried out an examination which involved a physical examination of the “customer”, as she is quaintly called in that jurisdiction; and so he found, examining her lower limbs -- for example, her sitting, her rising and her bending and so forth -- that she declined to cooperate in much of his examination; and his summary of her functional ability was that there were some features to suggest disability, but not at the level claimed. He then examined her lower limbs -- standing, walking and stairs and so forth -- and reached a similar conclusion. He examined her upper limbs, and the summary of functional ability was in like terms.[12]He concluded in his summary of functional ability that he was unable to find evidence to support the disability claim. Then on page 12 he turned to her mental health, and he examined that under various headings. For example, completion of tasks. Question: Can he or she answer the telephone and reliably take a message? The answer: Always decides to ignore when the phone rings. He considered her general attitude to life and noted she would sit doing nothing for several hours a day. It revealed moderate depression on examination. She was prevented from undertaking leisure activities because she had lost interest. Again, he found moderate depression on examination. She had no social interaction with other people but she was orientated in time, place and person. Under the rubric of daily living, and whether she needed encouragement to get up and dress, once again there was moderate depression on examination. Her movements are very slow and he added “suggests severe depression”. She had reduced facial expression which “suggested depression”. As for her alcohol use, he observed “she is dependent on alcohol, her breath smelt of alcohol and her hands were shaky”. She felt depressed every day, and moderate anxiety was revealed on examination and so was moderate depression. And there are, under the heading “Coping with Pressure”, similar findings of moderate anxiety on examination and moderate depression on examination. As for her interaction with other people, she had no social interaction with other people. She rarely went out due to her anxiety and her lack of motivation. But again the diagnosis was of moderate depression on examination.[13]Now comes on page 15 the relevant summary which was in these terms:
“The customer’s mental health problems cause severe disability.”
The question therefore is whether, in observing that the report did not say that she suffers from a severe disability, he made an error of law. I do not see it in that way at all. This report was a report designed to explain to that tribunal whether she was disabled, and his summary on page 15 of her having severe disability may accurately be a summary of how her ability to live her life was affected, but it is not, as the reviewing officer was entitled to conclude, necessarily a finding that she had a severe mental disability. He was entitled to conclude that the report does not say she has a severe disability. He was entitled to conclude that because his diagnosis of her mental condition was only that she suffered from a moderate depression and a moderate anxiety, and those two diagnoses are incompatible with the severe disability as a description of a mental illness.[14]It seemed to me, as I read through the decision letter more than once, that the reviewing officer was concentrating on the language of the statute to ask himself the relevant question: was this vulnerability the result of mental illness? Was her mental illness, in other words, of a degree that caused her to be vulnerable? There is no doubt and no issue raised about the test that the reviewing officer applied. He correctly addressed himself to the well-known case of Camden LBC ex p Pereira [1998] 31 HLR 317, where the test was set out that a person is vulnerable if he has such a lesser ability than that of a hypothetically ordinary homeless person to fend for himself and that he would suffer greater harm from homelessness than such a person.[15]The reviewing officer looked at the medical report. He commented on the summaries at page 5 and 7 under the headings of “Functional Ability” which I have already cited; he concluded that there were features to suggest disability but not to the level claimed; he commented on her failure to cooperate; he commented on his own attempts to contact Ms Mangion to explain why she declined to carry out the various activities and to enquire into her medication; to be told that she does not take medication for either her back, her alcohol misuse or her moderate depression. He concluded that:
“This could in essence be interpreted as Ms Mangion’s mental state not deteriorating further from its current stage. Dr Alaparti in giving his reasons informs that Ms Mangion’s level of disability is unlikely to vary significantly in the foreseeable future. Therefore in my view it implies that her condition will remain at its current state.”
[16]He referred to the medical report with reference to her upper limbs and he referred to the summary on page 9. He commented that the examination was for the purpose of incapacity benefit and he said that he had regard to the nature and extent of her alcohol use and her back pain, and he then said this on page 3 of his decision letter:
“Having made various references to the incapacity for work medical report form it indicates to me that Ms Mangion’s condition is not at a state that would alleviate her from functioning in a normal coherent way and hence I believe she is able to manage her own affairs without any problems. There is an indication on reading Dr Alaparti’s report with the resulting summaries that he thought Ms Mangion’s back pain and alcohol problem were not as serious as Ms Mangion made them out to be.”
So there he seems to me fairly to be having regard to the whole of the report. He concluded that there was nothing that would suggest that her mental or physical state would prevent or impede her ability in finding accommodation for herself. So there again he is directing his attention correctly to whether vulnerability was the result of physical disability.[17]He then turned to the question of whether she could be vulnerable for special reasons, again indicating to me that he had the statutory test well in mind. He considered her alcohol problem. There is no complaint about the way he dealt with that. He then referred to page 12 of the report, dealing with mental health. He quite clearly directed his attention to the whole of that part of the report which I have summarised. He expressly refers to page 12 and to page 13. He makes reference to the moderate depression. He makes reference to coping with pressure, and he concludes that:
“Having considered all the factors raised in the Medical report […] and the letter from Dr Badu [GP] I am satisfied that Ms Mangion is not vulnerable under special reasons.”
Again a conclusion to which he was, in my judgment, entitled to come, having correctly directed himself as to the proper approach.[18]And so, and by now I am on page 4 of his report, he concludes -- and this, it seems to me, is a complete answer to the complaint that he did not take an overall look at it and regard all the factors together as a composite conclusion --- by saying this:
“Having considered the medical adviser’s opinion as well as all the medical information on file including further representations made by you on behalf of Ms Mangion, I am satisfied she is not vulnerable and therefore has no priority need.”
He referred to the Pereira test and concluded that the applicant could cope without harmful effect and managing her affairs.[19]He refers back to the report. He repeats the observation already highlighted about the customer’s mental health problems causing severe disability. He says that at the time Ms Mangion presented for the incapacity for work medical, there was nothing to show she was suffering from anything severe. There was no evidence of medication being taken for alcohol misuse or back pain and so he, again, looked at the matter objectively, he said, and concluded that:
“In considering this case objectively, I would say that Ms Mangion’s condition is not dilapidating [by which I am sure he meant debilitating] and nor is it at a state that it would prevent her doing day to day activities and fending for herself. There is no suggestion that Ms Mangion’s condition would put her at serious risk to be considered as medically vulnerable.”
And so his conclusion was that she was not in priority need.[20]I have attempted to summarise his decision letter in order to demonstrate to my satisfaction that he did have in mind the general effect that her life was having upon her inasmuch as it impaired her ability to move outside, even to care for herself in her home. I conclude that he did not ignore those relevant factors but had them in mind in coming to his overall conclusion. I am equally satisfied that the conclusion was not perverse in the sense that it is not one to which no reasonable decision maker would come in all the circumstances of the case. As Auld LJ made clear in Osmani v Camden LBC [2005] HLR 325 at 341:
“Nevertheless, although authorities should look for and pay close regard to medical evidence submitted in support of applicant’s claims of vulnerability on account of mental illness or handicap, it is for it, not medical experts, to determine the statutory issue of vulnerability.”
[21]In my judgment the reviewing officer, having correctly set out the Pereira test, having correctly addressed his mind to the statutory practice in section 189 1C of the Act, arrived at a conclusion to which he was wholly entitled to come and therefore, like HHJ Knight in the county court, I would dismiss this appeal.[22]Although permission was granted in this case for a second appeal, it is apparent from the arguments canvassed on the substantive appeal before us that we are concerned only with a very narrow question concerning an individual decision by a reviewing officer. The decision itself is not well expressed or well structured, but the authorities show that a decision of this kind is not to be subjected to pedantic exegesis and is to be read as a whole in order to get its full sense: see, for example, Osmani v Camden LBC at paragraph 38(9).[23]Almost the entire focus of the challenge to the decision in this case is the reviewing officer’s treatment of the medical report of Dr Alaparti relating to the appellant’s earlier claim for Incapacity Benefit. It is, however, clear in my view that the reviewing officer paid close regard to that report as well as taking into account the limited medical evidence from the appellant’s GP and the other material before him relating to the appellant’s circumstances. It was for the reviewing officer to reach his own decision on vulnerability under Section 189(1) (c) of the Housing Act 1996 in the light of all that material. The challenge to the decision comes down, and has to come down, essentially to one of perversity; but, for the reasons given by Ward LJ, I agree entirely that the conclusion reached in this case was reasonably open to the reviewing officer on the evidence and involved no error of law. It follows that HHJ Knight QC was right to dismiss the appeal from the review decision and that the further appeal to this court should likewise be dismissed.[24]I agree with both judgments, and I agree that this appeal should be dismissed.

Order

Appeal dismissed