London Borough of Wandsworth v Allison [2008] EWCA Civ 354

[2008] EWCA Civ 354Case No B5/2007/1195
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
the late Recorder Robin Spon-Smith
sitting in the Wandsworth County Court on 31 May 2007.
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/04/2008
Before
LADY JUSTICE ARDENLORD JUSTICE WALLLORD JUSTICE WILSON
Between
LONDON BOROUGH OF WANDSWORTHAppellantPHILLIP ALLISONRespondent
(Transcript of the Handed Down Judgment 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)Mr. Allison neither attended nor was he represented at the hearing of the appealMr David Lintott (instructed by Messrs Ashford - Solicitors) for AppellantHearing Hearing date : 7th March 2008
JudgmentLord Justice Wall :Introduction
[1]With permission granted by Jacob LJ on 16 July 2007, the London Borough of Wandsworth (Wandsworth) appeals against an order made by the late Recorder Robin Spon-Smith sitting in the Wandsworth County Court on 31 May 2007. By his order, the Recorder allowed an appeal by Mr Philip Allison under section 204 of the Housing Act 1996 (the Act) against a determination by Wandsworth that he was not in priority need for housing within the provisions of section 189(1)(c) of the Act. As will be immediately apparent, this is a second appeal, and the provisions of section 55(1) of the Access to Justice Act apply to it.[2]The form this judgment will take will be to set out, under separate headings, the material (including the relevant authorities) available to the Recorder. This exercise, whilst perhaps somewhat lengthy, will, in my judgment, clearly explain the outcome of this appeal without the need for any detailed analysis.[3]Before embarking on that exercise, however, I need to point out that an unusual feature of the case is that Mr. Allison neither attended, nor was he represented at, the hearing of the appeal. Correspondence from his solicitors made it clear that he was abroad, and that as a consequence, his public funding certificate had been discharged on 20 January 2008. Wandsworth, nonetheless, urged us to hear the appeal, and we duly did so. At the conclusion of the argument, we reserved judgment.[4]We are grateful to Mr. David Lintott, counsel for Wandsworth, both for his clear and cogent submissions, and for responding to a request from Arden LJ to set out the arguments that Mr. Allison may have wished to raise in this court had he been represented by counsel. As it happened, we also had a skeleton argument prepared for this court by counsel for Mr. Allison prior to the discharge of his public funding certificate. I will make further reference to this document later.

The essential and undisputed facts

[5]I take these largely from the helpful chronology prepared by counsel for Wandsworth in the county court. Mr. Allison is 57. He arrived from the Philippines on 7 September 2006, and was admitted to the Chelsea and Westminster Hospital (the Hospital) on the same day with suspected deep vein thrombosis (DVT). He had been in the United Kingdom before, and Wandsworth had previously refused an application for priority housing for him. We are not, however, concerned in any way with the previous application.[6]On 12 September 2006, Mr Allison applied for emergency housing under Part VII of the Act. He was both interviewed and completed a medical assessment form on the same day. On 19 September 2006 his application was rejected by Wandsworth. Following a review, during the course of which the papers were submitted to Wandsworth’s Medical Adviser, Dr. John W. Keen, a decision letter dated 19 October 2006 under section 184(3) of the 1996 Act was written to Mr. Allison stating that, in Wandsworth’s view, Mr. Allison was not in priority need of housing within section 189 of the Act. Following a further review, during which the papers were submitted for a second time to Dr. Keen, Wandsworth confirmed its decision, initially in a “minded to” letter dated 17 January 2007, and finally in a decision dated 30 January 2007. It is the latter which formed the basis of Mr. Allison’s appeal under section 204 of the 1996 Act.

The legislation

[7]The terms of Part VII of the Act, which deals with homelessness, are very familiar. Mr. Lintott produced them for us in the form in which they are published (complete with a detailed commentary) in the Housing Review. This comprised a substantial bundle. However, with the exception of section 189(1)(c) itself, it does not seem to me to be necessary to set out the different sections in detail, and for my part I am prepared to adopt the summary contained in Mr. Lintott’s skeleton argument.[8]Section 175 of the Act provides that a person is homeless if he has no accommodation that he is entitled to occupy and that it is reasonable for him to occupy. Section 184 provides that where a local housing authority have reason to believe an applicant is homeless they must make enquiries to satisfy themselves whether a duty, and if so what duty, is owed to him. On completing their enquiries the authority must notify him of their decision (section 184(3)). The authority must secure that accommodation is available for the applicant where it is satisfied that an applicant is homeless, eligible for assistance, has a priority need and has not become homeless intentionally (section 193).[9]Thus, as applicable to the instant case, section 189(1)(c) provides that: 189 Priority need for accommodation (1) The following have a priority need for accommodation— (c) a person who is vulnerable as a result of physical disability or other special reason.[10]The decision as to whether or not a person falls with section 189(1)(c) of the Act is one for the local housing authority to make. However, section 202(1) of the Act gives a person in Mr. Allison’s position the right to request a review of Wandsworth’s decision, and section 204 provides a right of appeal to the county court on point of law if an applicant who has requested a review under section 202 is dissatisfied with the decision on the review.

The relevant authorities

[11]As the Recorder recognised, the jurisdiction exercisable by the county court under section 204 of the 1996 Act is analogous to, albeit somewhat wider than, that exercised by the Administrative Court on an application for judicial review: - see, for example, the decision of this court in Nipa Begum v L.B. Tower Hamlets[2000] 1 WLR 306 at 313, in which Auld LJ summarised what is meant by an appeal on a point of law in this context in the following words:- It is that "a point of law" includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, to which I add, also of irrationality and (in) adequacy of reasons. This broad construction of the provision is supported by the somewhat wider or more immediate power to vary given to the county court by section 204(3) than the High Court normally exercises in its judicial review jurisdiction.[12]Furthermore, as Lord Brightman pointed out in R v L.B. Hillingdon ex p. Puhlhofer[1986] 1 A.C. 484 at 518 (Puhlhofer) the local authority are the arbiters of fact in such cases. Puhlhofer was a case decided under the Housing (Homeless Persons) Act 1977, but Lord Brightman’s words apply equally to Wandsworth’s duty to Mr. Allison under section 189(1)(c) of the Act:- Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] A.C. 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.[13]As Mr. Lintott pointed out, the issue in the instant case was whether or not the applicant was in priority need: in particular, whether he was vulnerable within the class set out at section 189(1)(c). I also agree with Mr. Lintott –a point also accepted by the Recorder - that the classic formulation of the meaning of “vulnerable” within section 189(1)(c) of the Act is in R v Camden LBC ex parte Pereira(1999) 31 HLR 317 at 330 (Pereira) in the judgment of Hobhouse LJ namely:- The Council must consider whether Mr Pereira is a person who is vulnerable as a result of mental illness or handicap or for other special reason. Thus, the Council must ask itself whether Mr Pereira is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects.[14]Mr. Lintott also reminded us that Auld LJ had set out the test to be applied in greater detail in Osmani v Camden LBC[2004] EWCA Civ 1706, 37 (2005) H.L.R. 22. At paragraph 34, Auld LJ made it clear that the courts had recognised the difficult, involved nature of the decision-making process, particularly in the context of decisions on vulnerability and priority need: As I have said, the appeal lies only on a point of law, and, within the Wednesbury type formulation given by Lord Bingham, matters of fact, discretion and judgment on such an issue are essentially matters for the local housing authority. Given the nature of the statutory scheme, which requires authorities administering it to determine on a case by case basis quite complex questions involving the weighing of policy issues and identification of priorities concerning the interests of others as well as those of any individual applicant, courts should tread warily before interfering. Lord Walker of Gestingthorpe acknowledged the complexity of the task for housing authority administrators in the following passage from his speech in Runa Begum, at paragraph 114 of his speech:
“It is apparent that the process [by which a homeless person becomes entitled to the performance of the full housing duty] involves some important elements of official discretion, and also issues which (although not properly described as involving the exercise of discretion) do call for the exercise of evaluative judgment. Establishing priority need may call for the exercise, and sometimes for a very difficult exercise of evaluative judgment. The identification of a ‘vulnerable’ person may present real problems.”
[15]At paragraphs 35 to 38 of his judgment in the same case, Auld LJ identified the following matters which must be borne in mind, which Mr. Lintott accurately summarised as the following, namely:(a) fact finding is a matter for the local authority: moreover the appeal is on questions of law only;(b) questions of discretion or judgment are generally a matter for the local authority. The court should be particularly slow to interfere where the subject matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker. The homelessness legislation is a classic example of such a scheme, and the vulnerability provisions provide the clearest example within it;(c) vulnerability assessments involve detailed questions of fact and judgment of a type local authorities are particularly well equipped to investigate and answer.[16]In paragraph 38 of the same judgment, Auld LJ added:- Given that each authority is charged with local application of a national scheme of priorities put against its own burden of homeless persons and finite resources, such decisions are often likely to be highly judgmental. In the context of balancing the priorities of such persons a local housing authority is likely to be better placed in most instances for making such a judgment.[17]Auld LJ also pointed out at paragraph 40 of the same judgment that medical evidence may well be presented, but that vulnerability was not exclusively or even necessarily a medical question.[18]In summary, therefore, Mt. Lintott submitted that whether or not Mr. Allison had a priority need for accommodation was a matter for Wandsworth, subject to the right of review under section 202(1)(a) and his right of appeal on a point of law to the local county court under section 204. He further submitted, by reference to the authorities, that if the Housing Authority had asked itself the right Pereiraquestion; if it had sought to answer it conscientiously by reference to the evidence it had gathered; and had given its answer, it would be a rare case in which the court would be able to strike down the decision. A court should thus only exercise its power to vary a decision taken under section 204 if there was no real prospect that the decision-maker “acting rationally and with the benefit of further inquiry” might have been satisfied that a person in Mr Allison’s position was not in priority need. For this proposition, Mr. Lintott relied on the judgment of May LJ in this court in Tower Hamlets v Deugi[2006] EWCA 159 at paragraph 36.

The medical evidence

[19]Against this background, I propose to set out the medical evidence available to Wandsworth and to the Recorder. It comprised the following:-(1) a pro forma statement from Mr. Allison’s general practitioner dated 23 November 2005 giving a main diagnosis of hypertension and stating that he should refrain from his usual occupation for one year; (nothing turns on this report)(2) a discharge summary report from the Hospital dated 11 September 2006 stating that Mr. Allison had presented to the Hospital on 8 September 2006 “with acute bilateral leg swelling having just returned on a 15hr flight from the Philippines.” The summary then adds that Mr. Allison had “neglected to keep up his warfarin intake for the previous four days”. The relevant features identified in the discharge summary were that both his legs were “symmetrically affected by pitting odema from foot to hip”. A “CT abdo/pelvis detected a pelvic DVT”. Mr. Allison was treated with warfarin, and was “re-instated with the on-site anticoagulation clinic”. An addendum to the discharge summary stated that: - “From a medical point of view, it would be most appreciated if temporary accommodation could be made available to Mr. Allison considering the gravity of his diagnosis. It has been noted that he has a history of Raynaud’s phenomenon which is, by definition, precipitated by cold exposure and which is associated with severe pain largely unresponsive to medical therapy”. The medication prescribed included warfarin.(3) Wandsworth referred the matter to its medical adviser, Dr. John W Keen, with a request to consider “priority need on medical grounds”. On 16 October 2006, Dr. Keen reported in the following terms: - “A DVT (blood clot) is a one-off treatable episode only, and with compliance with medication (warfarin) there is no particular risk of recurrence. The other medical issues appear minor only and in particular his Raynaud’s disease as asserted is not such as to necessitate current treatment. Based on the information available, I make no housing recommendation.” Wandsworth accepted Dr. Keen’s advice Based on the information available, I make no housing recommendation.” Wandsworth accepted Dr. Keen’s advice(4) On 25 October there was a letter from Dr. Keith Gomez, a locum consultant haematologist at the Hospital, addressed to Mr. Allison’s solicitor. Having briefly set out the patient’s history, Dr. Gomez continued: - From a haematological point of view, his recurrent Venous Thromboses are an indication for long term anti-coagulation. Following recent thrombotic events there is a high risk of recurrence unless a (patient) is adequately anti-coagulated. The risk of recurrence is increased by dehydration and inter current medical problems such as infection all of which are more likely to occur in an individual who is homeless. Therefore it is likely that without adequate shelter his thrombotic complications are likely to recur causing more significant morbidity and even possibly mortality. It is imperative that Mr. Allison attends the anti-coagulation clinic and as he had no address at which we can write to him, I would be grateful if you can ensure that he contacts the office on the above number to arrange a further appointment.”(5) On 2 November 2006, there was a further letter from Dr. Gomez, making it clear that the Hospital’s anti-coagulant clinic had not formally assessed Mr Allison for more than a year. The relevant portion of the letter reads:- As you point out a number of times in your letters any of the expected problems that Mr. Allison may face can be deduced by common sense. I agree with this, but to my knowledge there are no studies in the medical literature specifically addressing the impact of homelessness on the occurrence of deep vein thrombosis. Therefore I am unable to give any special guidance on the effect of his homelessness on his absolute risk of recurrence. I agree with all of your comments regarding the impact of his homelessness and am happy to state that in my opinion being homeless increases the risk of recurrence. However, I cannot find any specific data to support this.”(6) On 21 November 2006, Dr D.J.R.Morgan, one of the two consultant physicians in the relevant department of the Hospital wrote to Mr. Allison’s solicitor. Having referred to the discharge summary, the relevant part of this letter reads: - It is clear that this gentleman has significant venous disease and has suffered recurrent venous thrombotic effects, necessitating long term anti-coagulant therapy. Such patients are benefited by having a regular domicile and good healthcare supervision with primary care physicians managing their circumstances. It is noted that he reported symptoms of Raynaud’s disease, however, during his admission there was no clinical evidence of this. Raynaud’s disease is a disorder of arterial function resulting in temperature related spasm of the blood flow to the extremities. People who suffer from this condition are benefited from being in an ambient warm environment to minimise the effects of cold on their peripheral circulation. It is difficult to provide a very strong case medically to support his petition for permanent housing on the basis of his initial assessment in September. It would be appropriate for him to be referred to a medical clinic or a rheumatology specialist who has an interest in Raynaud’s disease to give a more specific assessment regarding this complaint should you wish to use this in court proceedings. With regard to this thromboembolic disease he could be well managed by primary care physicians who could supervise his anti-coagulant medication together with his other cardiovascular medication for high blood pressure and raised cholesterol. The circumstance is best provided if he has a firm regular domicile and an associated general practitioner.”(7) On 27 December 2006 there is a letter from Mr Allison’s general practitioner, setting out the medication prescribed for him. The following sentences in the letter are relevant. “It is extremely important that he take the warfarin regularly and that this is monitored with blood testing in order to present recurrence. I suspect that homelessness does not encourage this stability and monitoring and therefore could affect his physical health”. At the end of the letter, having listed the medication Mr. Allison is taking for his hypertension, the doctor adds:- “I am unable to confirm that the patient has Raynaud’s disease, as I do not have his medical records as yet.”(8) On the same day, there is a letter from Dr. Frances Matthey, consultant haematologist at the Hospital. This was in response to a request dated 19 December from Mr Allison’s solicitors for a report that could confirm “the positive conclusions referred to above detailing the increase risk to occurrence (of thrombosis) due to homelessness”. Dr Matthey’s substantive response is in a letter dated 5 January 2007. This identifies and reports on a number of studies assessing the risk of a second clot in patients who have had one episode of spontaneous DVT. It also contains a discussion of the safety of the drug warfarin, with particular reference to two identified studies. Dr Matthey reports the need for patients receiving warfarin to be “appropriately monitored”. The letter concludes with this paragraph:- Given the above, a patient who is homeless may well be significantly disadvantaged in that he / she may have considerable difficulty attending the anticoagulant clinic appointments (when the anticoagulant effect of warfarin is monitored and the dose adjusted as necessary), may find it difficult to collect and maintain the necessary prescription for warfarin, and hence may also have difficulty adhering to the strict dosing schedule of the warfarin. The sum consequence of these issues is that the state of homelessness may significantly contribute to the risk of recurrence of venous thromboembolism and, indeed, to the risk of bleeding which may occasionally be fatal. For these reasons, I fully support Mr. Allison’s application for accommodation.(9) On 9 January 2007, Dr Keen was asked by Wandsworth to consider all the medical evidence on file, with particular reference to the letter from Dr Matthey summarised at (8) above. Dr Keen responded on 15 January 2007 with the following advice:- “My advice of 16 October remains applicable. In addition, compliance with warfarin therapy is not an onerous duty, being merely the consumption of one / two tablets each day and attendance at a clinic for occasional blood tests. With continued compliance, there is no particular risk of further thrombosis. I continue to make no housing recommendation.

Wandsworth accepted Dr. Keen’s advice

[20]On 26 January 2007, a Wandsworth social worker completed a “Summary of Needs and Risks, Sensory and Physical Disabilities” (known as the “SPD”). Although the social worker was plainly not medically qualified, and her report was not considered by the judge under the heading of the medical evidence, nonetheless, under the heading “Health and Safety” she refers to Mr Allison’s DVT and gives her opinion that:- Should Mr. Allison be homeless, I feel that there would be a risk to his life even. He is not supposed to walk for hours daily, he needs to avoid cold weather conditions, he has had several hospital admissions due to DVT and being homeless would be dangerous to him over and above a person who is healthy. In my opinion homelessness would put him at risk over and above that raising (sic) solely from destitution. However, Mr. Allison is able to look for accommodation at present. He needs advice regarding hostel accommodation if the Housing Department does not take responsibility for housing him. Slightly later, under a different heading, the same social worker writes: - Again, should Mr. Allison be homeless, his independent walking and travelling could be at risk because of both DVT and Raynaud’s Syndrome.

The decision-maker’s analysis of the medical evidence and the reasons for her decision

[21]For present purposes, I propose to concentrate on the decision letter of 30 January 2007. This is a detailed document, running to some 9 pages, and is signed by Marcia Anglin, a Senior Reviews Officer.[22]Having set out the background, and correctly identified that the section to be considered was section 189(1)(c) of the Act, Ms Anglin firstly identified and applied the Pereira test in relation to vulnerability. This is what she said:- I note from (Pereira) that the test which should be applied when assessing vulnerability under section 189(1) of (the Act) is whether the applicant is, when homeless, less able to fend for himself than the ordinary homeless person so that injury detriment to him / her will result when a less vulnerable person would be able to cope without harmful effects.[23]It was accepted by the Recorder (and I agree) that this is an accurate statement of the Pereira test. Ms Anglin then listed the medical reports (in which she included the SPD) which I have summarised in paragraphs 19 and 20 of this judgment, and stated that these had been referred to Dr. Keen. In relation to the reports generally, Ms Anglin comments:- These reports confirm that you have been diagnosed with, and is being treated for (sic) DVT, which I have been advised by (Dr. Keen) is blood clot, as well as hypertension. The Hospital discharge summary also indicated that there is a history of Raynaud’s phenomenon, although, Dr. Baker, in his report dated 27 December 2006 stated that he is unable to confirm this diagnosis, as she does not have your full medical records. Therefore, it is evident that you are not currently being treated for this condition. In relation to your DVT, it is noted that you were admitted to hospital on 7th September 2006 with acute bilateral leg swelling, and discharged on 11th September 2006. The hospital report stated that you had just returned to the UK on a 15-hour flight and had neglected to take your medication (Warfarin) for the preceding 4 days.[24]Ms Anglin then goes on to record and to reject the submission made by Mr. Allison’s representatives that his failure to take his medication was attributable to his homelessness in the period immediately prior to his departure from the Philippines to the UK.[25]The decision letter then continues:- The conclusion as stated in the discharge summary was that you are re-started on your medication (Warfarin) and no additional anti-coagulation was indicated. Therefore, it is reasonable to deduce that with compliance with your medication, there is no particular risk of recurrence. Further, there is no information to suggest that you would not be able to comply with your medication when homeless. This view is consistent with the recommendation from (Dr Keen) who confirmed that compliance with Warfarin is not an onerous duty, as this consist (sic) of merely the consumption of one / two tablets each day.[26]Ms Anglin then goes on to consider Dr. Matthey’s reports, including the report received as a result of the request made on 19 December 2006. She says:- I have since considered Dr Matthey’s previous reports which were later forwarded by your representatives. The said reports did not support the view that there is an increased risk to DVT due to homelessness. Equally, your GP also did not confirm any increased risk to DVT due to homelessness. At most, Dr Baker in her report dated 27th December 2006 stated “Isuspect that being homeless does not encourage this stability and therefore could affect his physical health”, a very speculative and tentative assessment. In any event, whilst it is reasonable to expect the ordinary homeless person to lack stability, and their physical health could be affected it is also reasonable to expect someone who does not lack cognition and is orientated in time space and person to take one or two tablet daily for health reasons. (Emphasis in the original).[27]Ms Anglin then goes on to consider in more detail Dr Matthey’s report of 5th January 2007, which I have summarised at paragraph 19(8) above, and makes the point that the studies to which Dr Matthey refers do not address Mr. Allison’s case specifically, or the specific risks he faced. She points out that, on the figures produced by the studies, 99.5% of DVT sufferers would live through the condition in a year, and that 99% would not have a life threatening or fatal bleeding.[28]Ms Anglin then refers to Dr. Gomez’s report of 25 October, and his conclusion that without adequate shelter it was likely (a word she highlights) that Mr Allison’s thrombotic complications would recur. She then comments:- This assertion relies on the occurrence of many probable factors which may or may no occur. It is equally reasonable to consider the other end of the spectrum, which includes the fact that you may not be without shelter (if you are able to make our own housing arrangements). You may not forget to take your medication (and it would seem that barring the 4-day period mentioned above you have maintained a good self-medication regime). You may not suffer any infections or dehydration as not all homeless people suffer such and as such may not have any thrombotic complications. All these parameters show that fatality seems very distant if considered in reverse to the comments of Dr. Gomez.[29]Ms Anglin then refers to Dr. Gomez’s further report, which I have summarised in paragraph 19(5) above, and the SPD assessment. She concludes that there was no evidence to support any claim that being homeless would increase the risk of a recurrence of DVT, and after a reference to the case of Griffin v City of Westminster ([2004] EWCA Civ 108) she expresses her conclusion in relation to DVT in the following terms:- Therefore, having considered the various medical reports, as well as the recommendation from (Dr Keen) (my emphasis), I am satisfied that DVT is not a condition that would render you incapable of fending for yourself when homeless if you comply with the self-medication regime (daily dose of Warfarin) and there is nothing preventing you from doing so. Therefore I am satisfied that you cannot reasonably be considered to be vulnerable due to your DVT.[30]Ms. Anglin then goes on to consider the question of Raynaud’s Phenomenon. As this is an area in relation to which the Recorder was particularly critical of the decision letter, I propose to set out the relevant passage in the decision letter in full. Your representatives have submitted that you have also been diagnosed as suffering from Raynaud’s Phenomenon, which is precipitated by cold exposure, and associated with severe pain. They added that the Council’s approach to the issue of vulnerability is flawed, and that the severe pain in your hands and feet can only be avoided, and then remedied by ensuring that you are not exposed to cold. Your representatives further stated that when homeless, you will suffer repeated attacks, and that these can lead to gangrene and the possible need for limb removal surgery. This claim made by your representatives is in my opinion highly speculative and at the far extreme of the homelessness spectrum. It is not based on any medical information specifically related to your case. It is also possible that you may not be attacked, suffer gangrene and have your limbs removed. I have been advised that Raynaud’s disease is a condition in which the blood flow to the fingers is restricted by excessive, inappropriate vasoconstriction, with little provocation. The exact cause is not understood, but the effect is cold, white fingers with pins and needles, and numbness. They eventually turn blue, then red, and are sometimes quite painful. In the worst cases the reduced blood flow can lead to damaged skin on the fingertips. In the less severe scenario they only create a cold effect causing pins and needles and numbness. Sometimes, more rarely, it is caused by another condition and in this context it is described as ‘Raynaud’s phenomenon’. There are many conditions that trigger it, but most of them are rare. They are usually diseases in which the immune system is faulty and prone to attack its own tissues (auto-immune disease), such as rheumatoid arthritis, systemic lupus erythematosis (SLE) and scleroderma, or diseases that obstruct and damage blood vessels directly. Apparently, even a severely under-active thyroid gland can be responsible. Obviously any underlying conditions need to be detected and treated, but they are rare. If you are well in other respects, then such conditions are very unlikely. Depending on the cause of the symptoms, medications may prove effective at treating Raynaud’s disease. In severe cases doctors normally diagnose Calcium channel blockers or Vasodilators. In less severe cases doctors will only recommend that the patient keeps warm by wearing warm clothing rather than treatment with medication. I note that there is no information to suggest that you are in receipt of medication for this condition and as such it would be reasonable to suggest that your GP is not of the opinion that your condition is severe in nature, or to suggest that you may require surgery at some future date. Whilst this is not a determining factor in my assessment of your vulnerability, it is nonetheless a relevant consideration, as it is reasonable to expect that you would be in receipt of treatment if your condition had been as severe as your representatives suggest. In their latest letter your representatives submitted that you have not had a regular GP for a number of years because you have been homeless. However, by your own admission, you lived in the Philippines and China from 2000 to 2004, where you were housed and supported by friends, and returned to the UK in September 2004, when you stayed with your friend until December 2005, and only returning to the UK in September 2006. Therefore it is apparent that you have spent some 5 years out of approximately the last 7 years out of the UK. I note your representatives have previously submitted that you left the UK in 2001 and returned in September 2006, and that you have a period of approximately 30 months out of the last 69 months in this country. However, from this information provided, I have calculated that you have spent only 21 months out of the last 72 months, (to January 2007) in the UK. This is made up as May to August 2002, (3 months); January 2003-January 2003, (1 month); November 2004 to December 2005, (13 months) and September 2006 to January 2007 (4 months). In any event, which ever version of events I accept, it is reasonable to conclude that you have only spent approximately 2 years out of the last 7 years in the UK, and hence this seems the more likely explanation for your lack of a regular GP rather than your homelessness. Furthermore, in your letter dated 15th November 2005 addressed to Dr Bavoni, you stated that your usual doctor was Dr Emiliani, but that they were on sick leave. Therefore, contrary to your representative’s assertion, it is evident that you did indeed have a GP, but you were not in the UK for the bulk of the last 7 years to access this service. My opinion that your representative’s claim is highly speculative is further borne out by the fact they have also submitted that despite the fact that you reported symptoms of Raynaud’s Disease to Westminster Hospital and there was no investigation to confirm this diagnosis. Therefore, it is apparent that although you are claiming to be suffering from this condition, there is no confirmed diagnosis. In any event, even if I were to accept that you are suffering with this condition, it is reasonable to expect that you would be receiving some treatment for this condition had it been considered severe or disabling in nature. Therefore, I am not satisfied that this unconfirmed diagnosis is such as to render you vulnerable under the Act.[31]Ms Anglin then turns to the question of Mr Allison’s hypertension. Nothing turns on this. She concludes her analysis of the medical evidence with these words:- In summary, I have considered the medical problems singly, and as a composite, and the effects of these on you. I have also considered the recommendation from (Dr Keen) as well as the level of treatment being prescribed for these conditions. I am not satisfied that these medical conditions are of the type or severity such as to significantly impede your daily activities, or impair your ability to fend for yourself as described in the test case. Therefore, I am not satisfied that all the medical problems mentioned above taken singly or in combination with each other as such as to render your less able to fend for himself, as described in the Pereira test.[32]Although the decision letter continues for another two pages, nothing appears to turn on the remainder of Ms Anglin’s conclusions. She does, however, consider the question of Mr. Allison’s vulnerability in considerable detail, and concludes that he was not vulnerable within section 189(1)(c) of the Act. In summary and on balance she finds no reason to consider the decision under review unreasonable, and she upholds it. In so doing, she says that she had had regard to the Code of Guidance for Local Authorities issued by the DCLG. She concludes by reminding Mr. Allison of his right of appeal.

The judgment of the Recorder

[33]The Recorder gave an extempore judgment. He described the homelessness provisions of the Act as having become “encrusted” with a considerable number of judicial decisions by the Court of Appeal and by the House of Lords, and stated his view that the topic had become potentially very complex. He then stated his intention to express his conclusions as to the issues raised as shortly and as simply as possible.[34]For my part, I think it unfortunate that the Recorder did not take longer to consider his judgment. Had he done so, he might well have taken the opportunity to re-read the medical evidence, and the housing officer’s analysis of the position under section 189(1) (c) of the Act.[35]Having identified the relevant statutory provisions, the Recorder summarised the grounds of appeal in the following way:- Firstly, that (Wandsworth) failed to apply the correct test in determining whether or not Mr. Allison was in priority need. Secondly, that the authority misunderstood the evidence before them. Thirdly, that in at least one respect the authority failed to carry out appropriate enquiries.[36]The Recorder then went on to consider the meaning of the word “vulnerable”. He commented that the word was not particularly obscure, and adopted a dictionary definition of “able to be easily physically, emotionally or mentally hurt, influenced or attacked”. He did not detect any concentration in the reported cases on the meaning of the word, and identified the decision of this court in Perieraas the leading case. He then extracted the following proposition from that case, namely that a person was “vulnerable” within section 189 of the Act “if, when homeless, he would be less able to fend for himself than the ordinary homeless person, so that injury or detriment would result to him which would not befall a person who was not vulnerable”.[37]Slightly later in his judgment, the Recorder examined Ms Anglin’s statement of the Pereira test. He picked up her application of the test as set out at paragraph 31 above and commented:- On behalf of Mr. Allison it is said – and, strictly speaking correctly so – that that paragraph contains a misstatement of the Pereira test. The question is not whether Mr Allison would be incapable of fending for himself but whether he would be less able to fend for himself that the ordinary homeless person. The reported cases contain numerous warnings against approaching certain decision letters as though they were Acts of Parliament and from nice textual exegesis, and it seems to me that, although the wording of the paragraph that I have quoted misstates the Pereira test, it is evident from the fact that earlier in the decision letter the decision- maker had set out, entirely correctly, the test and that, as a senior reviews officer, she must have had quite considerable experience of dealing with applications under (the Act) and of issuing decision and review decision letters, I cannot say that the review decision is vitiated by what seems to be no more than a slip by somebody who would have had the correct test well in mind.[38]I interpolate at this point that the Recorder plainly did not seek to strike down the decision on the basis that Ms Anglin had misapplied the Pereira test.[39]The only other direction which the Recorder gave himself as to the law appears in paragraph 12 of his judgment, where he says:- The jurisdiction which County Courts exercise on appeals under section 204 of the 1996 Act is precisely analogous with that exercised by the Administrative Court on the application of judicial review, at least so far as the court’s decision-making process is concerned. So far, what the Recorder says is plainly correct. However, he continued:- So far as the consequential order is concerned, it is not, I think, open to the Administrative Court when quashing the decision of an administrative body to substitute its own decision, but, in relation to these appeals, the statute specifically provides, in sub-section (3) of section 204 “On appeal, the court may make such order confirming, quashing or varying the decision as it thinks fit”. As I understand it, that empowers the court in an appropriate case, rather than remitting the matter to the local authority for further consideration, to make an express finding, and I have come to the conclusion that the evidence to which I have referred is so plain that it is unnecessary to refer the matter back to the local authority, and I propose to make a declaration that (Mr. Allison) is in priority need for accommodation in accordance with section 189(1)(c) of theAct.[40]After further argument, during the course of which a number of authorities were cited to him, the Recorder adhered to his decision, although he recognised that: the circumstances in which the County Court should substitute its own judgment for that of the local housing authority should be limited to cases which are so clear and plain that the court can be satisfied that there is no reasonable prospect of a different result if the matter went back for further review - that is to say a different result from the conclusion of the court. It is equally a jurisdiction to be exercised with some caution. Nevertheless, for reasons which I think will be apparent from my judgment I am satisfied that this is a sufficiently strong and plain case and that my original decision was the right one.[41]The critical aspect of the Recorder’s judgment is his analysis of the detail of medical evidence. This is how he introduced the matter:- The next point made is this. In relation to the DVT, after referring to medical reports by Dr Matthey, the reviewing officer stated:
“The said reports did not support the view that there is an increased risk of DVT due to homelessness. Equally, your GP also did not confirm any increased risk of DVT due to homelessness”
. It seems to me that that statement was simply wrong”.[42]The Recorder then recites the passage from Dr. Matthey’s report dated 5 January 2007, which I have set out at paragraph 19(8) above. He also refers to the two reports from Dr Keith Gomez, which I have summarised at paragraph 19(4) and (5), and to the report of Dr. Morgan, to which I have referred at paragraph 19(6). The Recorder continues:- In the light of that material, it simply was not open to the writer of the decision review letter to say that the reports, and by implication the medical evidence as a whole, did not support the view that there is an increased risk of DVT due to homelessness. The statement that Mr. Allison’s GP did not confirm any increased risk to DVT due to homelessness seems to me to be a complete non-point. There is one letter from her dated 27 December 2006. At that date, Mr. Allison had been registered with her practice for less than four weeks. She did not have his medical records. She had met him once only and there is no indication that she had been asked to address the issue of whether homelessness would increase the risk to DVT, although I note that she does observe that:
“I suspect that being homeless does not encourage this stability” – that seems to be a reference to taking warfarin regularly – “and monitoring and, therefore, could effect his physical health”
. The reference to that is less than a makeweight; it is a no weight point.[43]The Recorder then turns to the reviewing officer’s treatment of the question of Raynaud’s disease or Raynaud’s phenomenon, which he identifies as “a recognised disease which causes a particular set of symptoms”. He then cites part of the passage form Ms Anglin’s decision which I have set out in paragraph 30 above, and in particular her assertion that there was “no confirmed diagnosis”. In relation to this the Recorder says:- That again seems to me to be a conclusion which is not justified by the material which was before the officer.[44]The Recorder then refers to and cites from the discharge summary report from the Hospital, and in particular, the addendum which I have set out at paragraph 19(2) above. The Recorder then comments: - To say in the light of that there has been no diagnosis of Raynaud’s Phenomenon seems to me an entirely impermissible conclusion. It does not say, “Mr Allison has a history of complaining of Raynaud’s phenomenon”. It says, “He has a history of Raynaud’s phenomenon. It could not, in my view, be clearer.[45]The Recorder then cites further from the decision letter (in the passage set out at paragraph 28) above, and continues:- There are two points to me made in relation to that. First of all, the passage from the discharge summary which I have just read expressly states that Raynaud’s phenomenon, or the pain caused by it, is largely unresponsive to medical therapy. So, the absence of any current treatment is not at all remarkable. However, in any event, what the writer of the review decision letter should have been addressing was not the current state of the Raynaud’s phenomenon, but how it would develop if he became street homeless. It is so obvious as to hardly need saying that, if one is homeless on the street, there are going to be considerable periods of time when one is suffering from cold, and again the passage which I have read states that Raynaud’s Phenomenon is precipitated by cold exposure. Therefore, there was the clearest possible evidence,(a) that Mr. Allison did suffer from Renauld’s Phenomenon,(b) that there was nothing at all remarkable about the fact that it was not currently the subject of any medical therapy, and(c) that it was going to be exacerbated if Mr. Allison was to become street homeless.[46]The Recorder then goes on to reject the fourth criticism of Wandworth’s decision, namely Ms Anglin’s assertion that she had considered Mr. Allison’s medical problems “singly and as a composite and the effect of those on you”. The Recorder took the view that the force of Mr. Allison’s criticism – what he referred to as the “failure to make necessary enquiries” - was vitiated by the fact that on 17th January, before the review decision letter was sent, what has been referred to as a “minded to” letter had been sent to Mr Allison’s solicitors indicating, but not at that stage formally deciding, that the authority was minded to make an adverse decision on the review, and inviting a response. That letter had given Mr. Allison’s advisers that opportunity to counter the point with evidence as to the combined effect of the three conditions from which Mr. Allison suffered. This they had not done.[47]Despite having resolve this latter point in Wandsworth’s favour, the Recorder expressed his conclusion in paragraph 11 of the judgment, in which he said:- However, as I have made clear, I hope, I am satisfied that the authority went completely wrong in their assessment of the evidence in relation to DVT and Raynaud’s. It was not simply a question of the authority making findings of fact on competing evidence, which is something they would be perfectly entitled to do. It was a question of fundamentally misunderstanding and misstating the medical evidence in important respects.[48]As previously explained, the Recorder then went on not simply to quash the decision and remit it for reconsideration; but, exercising his powers under section 204(3) of the Act, to make a declaration that Mr Allison was in priority need of accommodation in accordance with section 189(1)(c) of the Act.

The attack on the judgment

[49]Mr. Lintott’s first point was that the Recorder was wrong to hold that, on the available evidence “it simply was not open to the writer of the decision/ review letter to say that the reports and medical evidence as a whole did not support the conclusion that there is an increased risk of DVT as a result of homelessness”. He pointed out that Ms Anglin had referred to the medical evidence to Dr Keen and, as she was entitled to do, she had preferred Dr Keen’s views, which I have set out in paragraph 19(3) and (9) above. Mr. Lintott pointed out that nowhere in the Recorder’s decision does he refer to Dr Keen’s evidence or indicate why, if he took it into account, he was of the view that Ms Anglin could not rely upon it. Mr. Allison reminded us that matters of fact were for the Local Housing Authority not the court to determine: see the passage from Lord Brightman’s speech in Puhlhofer, which I have set out in paragraph 12 above.[50]Mr. Lintott’s second point was that the Recorder himself had failed properly to apply the Pereiratest (as set out in paragraph 13 above) to determine whether Ms Anglin had been wrong in her conclusion that the Respondent was not vulnerable. The Recorder had held that the Ms Anglin “went completely wrong” in her assessment of the evidence on DVT and Raynaud’s disease, but he had not gone on to consider, as he should have, whether Ms Anglin was wrong in law to conclude that Mr. Allison was, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment would result where a less vulnerable person would be able to cope without harmful effects. Nowhere, Mr. Lintott submitted, did the Recorder address Ms Anglin’s conclusion that Mr Allison could take his pills effectively when homeless, and that with continued compliance there was no particular risk of further thrombosis, with the consequence that Mr. Allison would not, when homeless, be less able to fend for himself than the ordinary homeless person so that injury would result when a less vulnerable person would cope without harmful effects. As Auld LJ had pointed out in Osmani, vulnerability under s.189(1)(c) was “not exclusively or even necessarily a medical question.” -see paragraphs 14 to 17 above.[51]Mr. Lintott's third point was the Recorder had been wrong to criticise Ms Anglin’s conclusion that there was no confirmed diagnosis of Raynaud’s Disease, and to hold that she had reached an “impossible conclusion”. This was because Dr Morgan had stated in her report of 21 November 2006 that Mr Allison had reported symptoms of Raynaud’s disease, and had added “however during his admission there was no clinical evidence of that”. Mr. Lintott pointed out once again that matters of fact are for the Local Housing Authority not the Court to decide. It was, he submitted, plain from the medical evidence that there was no confirmed diagnosis of Raynaud’s Disease. It followed, Mr. Lintott argued that the Recorder’s other findings in relation to Raynaud’s disease were equally unsound. Mr. Lintott reminded us that Dr Keen had noted that the Raynaud’s disease was minor only and “as asserted is not such as to necessitate current treatment”. Once again, Mr. Lintott argued, the Recorder had impermissibly assumed Ms Anglin’s role in determining the facts on this issue.[52]Mr. Lintott submitted, accordingly, that the Recorder had been wrong to find that Ms Anglin’s conclusions were perverse. Ms Anglin was the arbiter of fact on a Section 202 appeal. The weight to be given to the evidence considered by the Ms Anglin was a matter for her, provided that her decision was one which it was properly open to her to reach: - see Lord Brightman’s speech in Puhlhofer.[53]Mr. Lintott submitted that, in this case Ms Anglin had carefully considered all of the medical evidence in a decision letter which ran to some nine pages in length. She had the reports submitted on Mr Allison’s behalf well in mind. Her discussion of the reports had been prefaced by a correct summary of the Pereira test, which made it clear that she was considering how the Respondent would cope when homeless. She gave clear reasons why she did not share Dr Gomez’s pessimism in relation to how Mr Allison would be affected by his condition when homeless, and as to why she did not think the evidence provided by Dr Matthey gave rise to a finding of Pereira vulnerability. It was equally clear from the decision letter that Ms Anglin had the advice of Dr Keen in mind. Dr Keen’s view was that “compliance with Warfarin therapy is not an onerous duty, being merely the consumption of one/two tablets each day, and attendance at a clinic for occasional blood tests. With continued compliance there is no particular risk of further thrombosis.” This was advice she was entitled to accept.[54]Mr. Lintott also submitted that although the Recorder had set out the Pereira test correctly in his judgment, he had failed properly to apply it. He also submitted that similar considerations applied to the question of Raynaud’s Disease. The Recorder had been wrong to find that Ms Anglin’s conclusion that there was no confirmed diagnosis of Raynaud’s Disease was “not justified on the material before the officer” and an “impossible conclusion”. This was because Dr Morgan had stated in her report of 21 November 2006 that “(Mr. Allison) reported symptoms of Raynaud’s disease, however during his admission there was no clinical evidence of that”; and “It is difficult to provide a very strong case medically to support his petition for permanent housing on the basis of his initial assessment in September”. Mr. Lintott submitted that it was plain from the medical evidence that Ms Anglin was correct to conclude that there was no confirmed diagnosis of Raynaud’s Disease.[55]Mr. Lintott also submitted that the Recorder had been wrong to vary Wandsworth’s decision in the way that he did. However, I do not think it necessary to record Mr. Lintott’s arguments on this point. If the Recorder should have upheld the decision and was wrong to quash it, then it must follow that he was wrong to vary it.

The arguments available to Mr Allison

[56]In the skeleton argument prepared by counsel on Mr Allison’s behalf in this court, which is undated but which clearly predates the discharge of Mr Allison’s public funding certificate, counsel accepted that matters of fact and weight were essentially for Wandsworth subject to the grounds for a “judicial review” challenge. Counsel submitted that the relevant authorities were before the Recorder, and that he plainly had them in mind.[57]In paragraphs 5 and 6 of the skeleton argument, counsel took issue with the proposition that Wandsworth was entitled to prefer the evidence of Dr. Keen. In this context, reference was made to the decision of this court in the case of Shala v Birmingham City Council [2007] EWCA Civ 624. In Shala, the judgment of this court (Mummery and Sedley LJJ and Lightman J) was given by Sedley LJ. The case concerned an application by Mr and Mrs. Shala, who were refugees from Kosovo, for housing as persons in priority need. Whilst their applications for asylum had been pending they had been provided with housing and support through NASS.[58]As Sedley LJ pointed out, it was an irony that, once their asylum claim had been accepted, the status thereby created came to an end, and they had to fend for themselves. Hence their application to the local authority for housing as persons in priority need. The principal basis for the application was that Mrs Shala in particular was suffering from serious mental ill-health in the form of Post Traumatic Stress Disorder and depression.[59]In rejecting their claim, both the authority and, on appeal, the circuit judge relied on evidence which the authority had obtained from Dr. Keen, whose advice was recorded in the decision letter in the following terms:- I have consulted with an independent medical advisor who is also a registered GP with a broad knowledge of the medications and treatments available for each condition. He also has experience of psychiatric health as many conditions first present and are treated at a local level. I have furnished the medical advisor with all the available evidence including your own statements and letters from your GP, including the prescription details. As previously explained in my minded to letter of 17th January 2006, we have been provided with details on the specific medication you both take and what action would be expected from a medical point of view should your conditions be severe of (sic) disabling in type. The medical advisor scrutinised your housing file, all of the medical information provided and mindful of the Pereira test has made no specific housing recommendations on your case.[60]As a result (inter alia) of this opinion, the applicants obtained further evidence, and this court allowed the applicants’ appeal on the principal ground that there had been a patent error in the local authority’s appreciation of the medical evidence. In paragraphs 18 to 23, this court set out its views on the use of medical advisers with particular reference to Dr. Keen. In fairness to Mr. Allison, I propose to set out the entirety of these paragraphs:18. Dr Keen, according to the documentary evidence, is a registered medical practitioner in general practice in West London. His CV indicates that he also offers, through a business called Nowmedical, medical advice to housing authorities and social providers, a number of whom he lists, as well as to NASS and the Home Office. A section of his CV headed "MENTAL HEALTH EXPERIENCE" makes no claim to specialist training but points out that general practice involves regular contact with a wide range of mental illness, and says that his own practice both offers an NHS-funded in-house psychotherapy service and monitors and treats patients with severe mental illness. But those who rely on his opinions need to bear in mind that, notwithstanding this wide experience in general practice, he is not a qualified psychiatrist.19. It is entirely right that local authority officers, themselves without any medical expertise, should not be expected to make their own critical evaluation of applicants' medical evidence and should have access to specialist advice about it. What would not be acceptable is seeking out advisers to support a refusal of priority need housing wherever possible. There is nothing in the material before us to suggest that Dr Keen's service is of this kind. Although he features in a number of reported homelessness cases as the local authority's medical adviser, it is a necessary feature of those cases that there has been a refusal and that his advice has therefore been negative. We do not know in how many cases he has supported a claim of priority need. One would certainly expect there to be such cases. Edward Fitzpatrick, counsel for the appellant, has therefore rightly sought to cast no adverse imputation on Dr Keen, but he submits, and we agree, that care has to be taken by local authorities not to appear to be using professional medical advisers simply to provide or shore up reasons for a refusal.20. It is not the doctor but the local authority who has the duty of deciding whether the statutory tests of priority need are met. As has been seen, Dr Keen did not attempt to formulate his advice in the language of the Act or the cases decided under it. Yet the alternating criticisms of Mrs Shala's doctors in the decision letter show why the Community Law Partnership had felt obliged to go back to Dr Mukherjee at one point for a report cast in terms of the eventual statutory decision.21. This is not an altogether simple matter. Medical and other advisers, while it is not their task to take the local authority's decision for it, are helpful only to the extent that they furnish material within their professional competence which addresses issues which the local authority has to decide. Local authorities are doing applicants, and themselves, a service if they direct medical (and legal) advisers' attention to these issues. But they are not entitled, nor even well advised, to demand that the opinion or advice be couched in terms of their eventual decision. Medical practitioners, on the other hand, need to direct their opinions as nearly as possible to the issue which the recipient has to decide, and may well need to be told by their patients' lawyers what that issue is. There is no single right way of dealing with this, but in our view there is no harm and some good in medical advisers directly addressing, if appropriate in exact terms, those matters within their professional competence which the local authority has to make a decision about, so long as both they and the local authority recognise that it is for the latter to make its own appraisal of every opinion in the light of the available diagnostic and evidential material.22. It is appropriate in this light to consider the role of a practitioner such as Dr Keen. While this court in Hall v Wandsworth LBC [2005] HLR 23, §42, described his report to the local authority as constituting not merely commonsense comment but expert advice, the limited extent and character of his expertise has to be borne in mind by those using his services. As another constitution of this court pointed out in Khelassi v Brent LBC[2006] EWCA Civ 1825, §9, 22, Dr Keen is not a psychiatrist, with the result that the county court judge had been fully entitled to regard his dismissive comments on a qualified psychiatrist's report insufficiently authoritative for the local authority to rely on. In this situation a local authority weighing his comments against the report of a qualified psychiatrist must not fall into the trap of thinking that it is comparing like with like. His advice has the function of enabling the authority to understand the medical issues and to evaluate for itself the expert evidence placed before it. Absent an examination of the patient, his advice cannot itself ordinarily constitute expert evidence of the applicant's condition.23. Dr Keen twice advised on Mrs Shala’s condition without examining her. There is no rule that a doctor cannot advise on the implications of other doctors' reports without examining the patient; but if he or she does so, the decision-maker needs to take the absence of an examination into account. Local authorities who rely on such advice, and doctors who give it, may therefore need to consider – as many already do - whether to ask the applicant to consent to their having their own examination. Between these two poles, however, there is a third possibility – that the local authority's medical adviser, again with the patient's consent, may speak to the applicant's medical adviser about matters which need discussion. It may be thought, for example, that Dr Keen would have been helped by discussing with Dr Deb or Dr Mukherjee, or both, just how depressed Mrs Shala was (Dr Deb's epithet "quite" has a sizeable range of meaning) and whether the anti-depressant dosage prescribed for her reflected only moderate depression or was conditioned by factors such as her being concomitantly on other medication or a disinclination of the practitioner to over-prescribe. The caveat we would enter, because of misunderstandings which can easily arise, is that any such discussion should be informal and only an agreed minute of it, if one results, become part of the case materials.[61]In his skeleton argument, counsel for Mr Allison submitted that these observations applied in equal measure to the circumstances of the instant case. In particular, Dr Keen had not examined Mr Allison and had not discussed his case with Mr Allison’s doctors. There was no suggestion that Dr. Keen had the expertise or qualifications to enable him to give an expert opinion on Mr Allison’s condition. The proper role for Dr Keen, counsel submitted, was – as stated in paragraph 22 in Shala - to enable Wandsworth “to understand the medical issues and to evaluate the medical issues before it”. As a consequence, counsel submitted, the Recorder was entitled to conclude that Wandsworth had misunderstood the medical evidence before it.[62]In relation to Raynaud’s disease, counsel’s principal point was that Wandsworth had been in error in concluding that the disease was not severe because – if it were – Mr. Allison would be receiving treatment for it. The evidence was that Raynaud’s disease was largely unresponsive to medical therapy. The absence of treatment was, accordingly, unremarkable.[63]Counsel sought to refute the proposition that the Recorder had usurped Wandsworth’s role. The Recorder had taken a common sense view of the case when he said:
“if one is street homeless, there are going to be considerable periods of time when one is suffering from cold”
. This view was consistent with the medical evidence.[64]Generally, counsel submitted, the Recorder had had the correct tests well in mind. He had been entitled to quash Wandworth’s decision and to hold that there was no real prospect that, acting rationally, and with the benefit of further enquiry, Wandsworth could decide that Mr Allison was not in priority need. Two consultant haematologists had confirmed the position as regards Mr Allison’s DVT. Furthermore, Wandsworth’s own enquiries in relation to Raynaud’s disease confirmed that the condition was aggravated by the cold. Whether or not there had been a confirmed diagnosis of Raynaud’s disease, Wandsworth appeared to accept that Mr. Allison suffered from the symptoms of that condition, and as the Recorder had observed, it was obvious that his symptoms would be aggravated if he were homeless. Wandsworth had been wrong to reject Mr. Allison’s claim, and the judge had been entitled both to set its decision aside and to substitute his own.

Discussion

[65]Having set out all the relevant material – no doubt at somewhat excessive length - it is clear, in my judgment that this appeal succeeds. It does so, I think, for one very simple reason, and that is that the Recorder’s approach to the question he had to decide is seriously flawed. The question which he plainly should have asked himself, in my judgment, was whether or not the decision reached by Ms Anglin that Mr. Allison was not in priority need for accommodation under section 189(1) (c) of the Act was one which was properly open to her on the evidence before her. To put the matter in lawyer’s terms, the Recorder could only quash Ms Anglin’s decision if it was Wednesbury unreasonable – see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223, per Lord Greene MR in particular at 233- 4. In other words, was Ms Anglin’s decision one which no housing officer, properly directing her mind to the material before her could properly reach? If the decision was one which was properly open to her, then the overwhelming weight of authority is to the effect that the decision was one for her, and that there is no basis upon which the court could properly interfere with it, however, much the court may or may not agree with it.[66]In my judgment, the decision that Mr. Allison was not in priority need of accommodation under section 189(1) (c) of the Act was one which was properly open to Ms Anglin on the evidence. She was duty bound to weigh all the relevant evidence. She did so. She had to apply the Pereira test. She did so. Her first reference to it was immaculate: the second was criticised by the Recorder, but was found by him not to be material. She did not leave anything relevant out of account, or include in her consideration any material which was irrelevant. She was entitled to take into account the views of Dr Keen and to give them the weight she did. In short, her decision was not Wednesbury unreasonable, and the Recorder thus had no power to interfere with it. His decision, as a consequence, cannot stand.[67]Speaking for myself, I do not see this as a case which turns on the Recorder’s application of the Pereira test. The Recorder’s error, in my judgment, was to decide the case on his own perception of the facts, and his belief that Wandsworth’s decision was Wednesbury unreasonable. In his view, it was a question of Ms Anglin “fundamentally misunderstanding and misstating the medical evidence in important respects”. In my judgment he was plainly wrong so to find. In my judgment, the decision Ms Anglin reached was properly open to her on all the evidence available to her, including that of Dr. Keen.[68]Equally, although I have set out the result of the SPD, Ms Anglin was plainly entitled to decide the case on the medical evidence. The social worker who completed the SPD was not medically qualified, and it is a tribute to Ms Anglin’s thoroughness that there is a note on the file dated 30 January 2007 which records a telephone conversation between the social worker and Ms Anglin, initiated by the latter, in which the former stated that her report was based on very limited knowledge, and certainly no better than or different from the medical evidence on which Ms Anglin based her decision letter.[69]Having set out all the relevant material at such length, I do not think it necessary to explain in any greater detail why I take the view that the Recorder asked himself the wrong question. In the light of Shala, however, I need to say a word or two about Ms Anglin’s reliance on Dr. Keen’s evidence.[70]I agree with Mr. Lintott that it is a material weakness in the Recorder’s judgment that he makes no mention of Dr. Keen’s reports, and only refers to Dr. Keen obliquely in passing. We simply do not know what the Recorder thought of Dr. Keen’s contribution to the medical debate.[71]In my judgment, however, Shala can plainly be distinguished, and although I have looked at the authorities referred to in that case, I do not think it necessary to add to the length of this already overlong judgment by referring further to them. In my judgment, Mr. Lintott is correct to argue, as he does, that in the present case, Dr Keen simply commented on the medical evidence in order to enable the local authority to understand the medical issues and to evaluate for itself the evidence before it as to Mr. Allison’s medical condition. It would plainly not have been appropriate for Dr. Keen to examine Mr. Allison. In the instant case, Dr. Keen’s advice seems to me to be well founded in his medical expertise, and he was thus fully entitled to advise Wandsworth on the manner in which Mr. Allison’s medical difficulties would be likely to affect him. Ms Anglin was, similarly, entitled to give weight to Dr. Keen’s conclusions.[72]Mr. Lintott also referred us to an unreported and unsuccessful application for permission to appeal heard by Arden and Gage LJJ in a case called Harper v. Oxford City Council [2007] EWCA Civ 1169 in which Shala was relied on, and a reference to Dr. Keen’s evidence was made. I mean no disrespect to that constitution when I say that although the case confirms the correct approach, it does not advance it, and I do not think it necessary to make further reference to it.[73]In summary, therefore, I have no doubt that the Recorder’s approach was flawed; that he did not apply judicial review principles; that he substituted his own findings of fact for those properly open to Wandsworth, and that, for the reasons I have given his decision cannot stand.[74]I would, accordingly, allow the appeal, set aside the judge’s order and restore Wandsworth’s decision of 30 January 2007 that Mr Allison was not in priority need of housing under section 189(1)(c) of the Act.

Epilogue

[75]I cannot leave this appeal without recording my regret at the death of the Recorder on 20 November 2007 at the early age of 65. Self-evidently, sentiment cannot play any part in the decision-making processes of this court particularly when it relates to a knowledge of, or an affection for, the judge whose decision is under appeal. Sentiment, of course, has played no part in my conclusions in this appeal. Nonetheless, having known the Recorder as a member of my former chambers, having been against him at the bar, and having heard him often as an advocate, I would like to associate myself fully with the generous tribute paid to him by Anthony Kirk QC in the March issue of the magazine Family Law([2008] Fam Law 275). It is, therefore, a matter of regret to me that my last contact with him should be in the role of appellate judge reversing one of his decisions; and I would like to think that, although he was at the time in remission from the cancer which ultimately took his life, the effects of that illness may have played some part in the decision which was the subject of this appeal. Lord Justice Wilson[76]I agree with the judgments both of Wall LJ set out above and of Arden LJ set out below. I also knew the recorder quite well on a professional basis; admired much of his work; and mourn his death. Lady Justice Arden[77]I agree that this appeal must be allowed. The two main criticisms of the decision upheld by the recorder were in relation to the statements in the decision that Mr Allison's GP did not confirm(1) any increased risk of DVT due to homelessness or(2) a diagnosis of Raynaud's syndrome or disease. Both these statements were in fact correct, although on the first point Dr Gomez had referred to an increased risk of recurrence of DVT if Mr Allison was without shelter. However, the critical point was the only medication prescribed for Mr Allison was Warfarin, and that all the medical evidence was considered by Dr Keen. In the opinion of Dr Keen, it would not be onerous for a homeless person to take Warfarin. I consider that it was open to the reviewing officer in those circumstances to take the view that Mr Allison would have no difficulty as a homeless person in complying with the medication and further that there was no particular risk of recurrence, and accordingly that in those circumstances the Pereiratest was not satisfied. It follows that the recorder erred in law in making the order that he did.

Cited in 3 later judgments