Shala and Another v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 27 June 2007 |
| Neutral Citation | [2007] EWCA Civ 624 |
| Docket Number | Case No: B5/2006/1898 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 2007 |
[2007] EWCA Civ 624
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
His Honour Judge Mckenna
6b051239
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Sedley and
Mr Justice Lightman
Case No: B5/2006/1898
Mr E Fitzpatrick (instructed by The Community Law Partnership) for the Appellant
Ms C Rowlands (instructed by Birmingham City Council Legal Services) for the Respondent
Hearing date: Tuesday 15 May 2007
This is the judgment of the court.
Mr and Mrs Shala are refugees from Kosovo: that is to say that their claims for asylum have been accepted as genuine and they have been granted indefinite leave to remain. We do not know the detail of the personal histories behind the claims, but it is known that they underwent serious ill-treatment and lost contact with three of their daughters. To this day they do not know what has happened to them. Their other two children, both young adults, are with them.
While they were asylum-seekers they were provided with housing and support through the National Asylum Support Service. It is an irony that, once a claim for asylum is accepted, the status which creates this entitlement comes to an end and refugees, often badly traumatised, have to fend for themselves.
Mr and Mrs Shala, finding themselves in this situation, applied to Birmingham City Council for housing as persons in priority need. Initially and then on review they were refused, and their appeal to Judge McKenna at Birmingham County Court was dismissed on 2 August 2006. Neuberger LJ (as he then was) stood over their application for permission to bring what would be a second appeal to be heard by a full court on notice, with the appeal to follow if permission was granted. At the end of the hearing we granted permission and, on the basis of the full argument we had heard, reserved our decision on the appeal.
In our judgment the appeal succeeds. Our reasons will, we hope, make it apparent why we consider that, despite being a second appeal, it merits the court's attention. Apart from being a matter of major consequence to the wellbeing of people whom this country has assumed an international obligation to protect, it raises an important point of practice in relation to the obtaining and use of medical advice by local authority decision-makers.
The relevant legislative provision now found in the Housing Act 1996 for identifying persons in priority need of housing can be shortly summarised. By s.189 those in priority need include any person who is vulnerable as a result of mental illness or for some other special reason. Vulnerability here, according to §8.13 of the 2002 Code to which local authorities were at the material time required by s.182 to have regard, meant being less able to fend for themselves than the ordinary homeless person, so as to be likely to suffer injury or detriment where a less vulnerable person would be able to cope with harmful effects. (Since then, following the decision of this court in Griffin v Westminster City Council [2004] HLR 32, the Code has been amended so that the question is whether the applicant would be less able to fend for him or herself, so that he or she would suffer injury or detriment: 10. 13). S.202 entitles an applicant who is turned down to an in-house review. S.204 gives an appeal on law to the county court.
The critical document is therefore the review decision, which in this case takes the form of a letter from a reviewing officer, Mr Jonjo Hegarty, dated 3 April 2006. It addresses the cases of both Mr and Mrs Shala, but it is Mrs Shala's case alone which forms the basis of the two appeals. The appeal turns upon Mr Hegarty's handling of the medical evidence supplied by the Shalas' solicitors, the Community Law Partnership.
A decision letter is intended to speak for itself and ordinarily does so, making explanatory witness statements such as that of Mr Hegarty, which was placed before Judge McKenna, irrelevant and therefore inadmissible. Before us, Catherine Rowlands, counsel for the local authority, has rightly not sought to rely on it. But it is necessary first to set out the background to the review decision.
The medical evidence
The initial refusal decision was given on 4 November 2005. The medical evidence about Mrs Shala before the initial decision-maker consisted of the following:
• A report dated 22 July 2003 from the Shalas' GP, Dr Elizabeth Gonzalez, diagnosed hypertension and depression and recorded low mood and constant weeping. Antidepressants had been prescribed and a psychiatric assessment was awaited.
• A second report from Dr Gonzalez dated 8 September 2004 recorded that Dr Snape, a psychologist, had examined Mrs Shala and confirmed the diagnosis of depression. It recorded that she had been under the care of a consultant psychiatrist, Dr Omoigui, who had diagnosed post-traumatic stress disorder, probably because of her missing children, but that she had been discharged following two non-attendances at appointments. In March 2004, however, she had referred herself back for psychiatric help, again recounting sleep disturbance and reluctance to leave the house, as well as financial worries and fleeting suicidal thoughts. The continuing diagnosis was depression.
Following the adverse initial decision a review was applied for. The further evidence initially obtained on Mrs Shala was a note of a telephone conversation with her new GP, Dr Salmon, on 8 November 2005, confirming the diagnosis of depression and recording a prescribed dosage of 30mg citalopram.
The local authority then took its own medical advice on the basis of the material so far available to it. It consulted Dr John Keen, who on 14 November 2005 reported in relation to Mrs Shala:
“The applicant has a history of depression which has necessitated referral for psychiatric assessment; however her condition is currently being treated with citalopram, a standard Prozac equivalent anti-depressant drug alone and likewise there remains nothing to suggest her condition [is] of particular severity, nor that it has been in the past and nor that impairs her ability to function or significantly impedes her daily activities.”
Mrs Shala's advisers then obtained further medical evidence for the reviewing officer to consider.
• On 15 December 2005 Dr Mukherjee, now Mrs Shala's GP, reported: “Mrs Shala suffers from severe post-traumatic stress disorder and is currently on high dose anti-depressants and is under the care of the Community Psychiatric Team. She also suffers from hypertension and osteoarthritis. She has also recently developed severe neck and arm pain, and has been referred to the orthopaedic triage department for assessment. All of these conditions are very debilitating and as such she is not able to work and is being cared for by her son and daughter. Both of whom are now showing signs of strain having to cope with parents that are severely debilitated.”
• There was also by now a first report from Dr Deb which, although dated 7 November 2005, had not been among the materials seen by Dr Keen when he wrote his initial report of 14 November 2005. Dr Deb, an associate specialist in psychiatry with the Birmingham and Solihull Mental Health NHS Trust, wrote: “This lady is very depressed …..” The rest of the very short report noted the patient's history but also included the potentially important fact that she spoke no English.
The local authority then sought a further commentary from Dr Keen. His report, dated 16 January 2006, was based on the two reports referred to in the previous paragraph and a report of 30 December 2005, which we have not seen, from a Nurse M Mukherjee. Dr Keen wrote:
“Further to my advice of 14 Nov 05, I note the letter from Dr Deb, the applicant's psychiatrist which confirms the applicant's diagnosis of depression. However there is no particular assertion of severity nor that psychiatric hospital admission or other substantial treatment is necessary and likewise she remains under treatment with a single standard Prozac anti-depressant drug alone.”
After this report from Dr Keen, but well before the review decision was made:
• On 23 January 2006 Dr Mukherjee wrote two further reports. In the first he said: “I can confirm given the medical problems that Mr and Mrs Shala have that they would be more vulnerable in a homeless state than would an ordinary homeless person without any attendant medical problems.” In the second he wrote “I am of the opinion that Mr and Mrs Shala would be when homeless less able to fend for themselves than ordinary homeless persons so that injury or detriment might result when a less vulnerable person would be able to cope without harmful effects.” In other words, Dr Mukherjee had initially reported on vulnerability in his own words and had then been asked to report in terms of the code.
• On 1 February 2006 Dr Deb wrote a further report: “This lady suffers from post traumatic stress disorder associated with depression.” The report goes on to comment on her housing conditions, evidently in the belief that it was required for a routine rehousing application.
• On 28 February 2006 Dr Deb wrote a further and fuller report on Mrs Shala, describing her enduring distress at the disappearance of her three daughters, her self-neglect and fear of going out, her nightmares and flashbacks, but noting that she had insight into her illness and its cause and was not expressing suicidal ideation. The report concluded: “This 56-year-old Kosovo...
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