Shala & Anor v Birmingham City Council

A housing authority deciding whether a homeless applicant is vulnerable must consider all medical evidence capable of materially affecting the decision. It cannot dismiss later reports as adding nothing where they describe a potentially graver condition than the material considered by its own adviser.

The statutory decision remains the authority’s responsibility. Medical advisers may address the matters which the authority must decide, including in the language of the applicable test, but the authority must appraise every opinion fairly against the underlying diagnostic and evidential material. Advice from a general practitioner who has neither psychiatric qualifications nor examined the applicant cannot ordinarily constitute expert evidence of the applicant’s psychiatric condition. The authority must account for differences in expertise and avoid treating such advice as equivalent to a qualified psychiatrist’s report.

Mr and Mrs Shala were refugees from Kosovo who applied to Birmingham City Council for housing as persons in priority need. The Council initially refused their application and upheld that refusal on review. Although both applicants’ cases were addressed, the appeal concerned Mrs Shala’s alleged vulnerability arising principally from post-traumatic stress disorder and depression.

Mrs Shala’s treating GP and psychiatrist supplied reports describing severe or unstable mental illness and the likely detrimental effect of homelessness. The reviewing officer preferred advice obtained from a general practitioner who had neither examined Mrs Shala nor held specialist psychiatric qualifications. The officer treated the later reports as adding nothing material.

His Honour Judge McKenna dismissed an appeal under section 204 of the Housing Act 1996. The Court of Appeal granted permission for a second appeal and considered whether the review decision had lawfully and fairly evaluated the medical evidence.

1. Appeal allowed. The review decision was unlawful because it excluded evidence of real and potentially decisive relevance. The later reports from Mrs Shala’s GP and psychiatrist described her condition differently, and arguably more gravely, than the evidence on which the Council’s adviser had formed his earlier opinion. The reviewing officer was not entitled to ignore one report or dismiss the other as adding nothing to what was already known.

2. The decision letter also displayed a want of fair-mindedness. It characterised the Council adviser’s opinion as impartial, failed carefully to compare his view with descriptions of severe post-traumatic stress disorder, depression and high-dose medication, and introduced reasoning which appeared to reflect the officer’s own psychiatric assessment. Even without the patent error concerning the later reports, the tone and reasoning tended unacceptably towards an adverse decision.

3. The authority, rather than any doctor, must decide whether the statutory priority-need test is satisfied. Medical advisers may properly address, even in the precise language of the applicable test, matters falling within their professional competence. The authority must nevertheless make its own appraisal of each opinion in the light of the diagnostic and evidential material. It should not demand that an adviser determine the ultimate statutory question.

4. A local authority may obtain medical advice to help officers understand medical issues and evaluate an applicant’s evidence. It must take account of the adviser’s qualifications and whether the applicant has been examined. A general practitioner without psychiatric qualifications must not be treated as offering expertise equivalent to that of a qualified psychiatrist. Without examining the applicant, such an adviser’s opinion cannot ordinarily constitute expert evidence of the applicant’s condition.

5. If clarification is required, an authority may seek the applicant’s consent to an examination or to discussion between its adviser and the applicant’s clinician. Any such discussion should be informal, with only an agreed minute entering the case materials.

6. The review decision failed to meet the standard required by law. It was quashed and had to be retaken.

1. Court of Appeal (Civil Division): Permission for a second appeal was granted. The appeal was allowed, and the Council’s review decision was quashed and ordered to be retaken: [2007] EWCA Civ 624.

2. Birmingham County Court: His Honour Judge McKenna dismissed the applicants’ statutory appeal on 2 August 2006.

3. Birmingham City Council: A reviewing officer upheld the original decision that the applicants were not in priority need.