Case Law: Priority need and medical evidence

In Guiste v Lambeth LBC (2019) WECA Civ 1758 the Court of Appeal in England and Wales once again considered the issue of vulnerability and priority need. The case concerned an application for homelessness assistance by a young man who was alleged to have both physical and mental health issues and who was found not to be in priority need by the council. This decision was upheld on review and a county court appeal was unsuccessful. Mr Guiste was granted permission to appeal to the Court of Appeal in May 2019 and in October 2019 Lord Justice Henderson issued a judgment referring the case back for reconsideration by an experienced review officer.

The judgment dismissed some of the client’s grounds for appeal, including the submission that there was an error of law in the way the review decision dealt with the applicant’s physical ill-health, with the court finding that the reviewing officer correctly understood the client’s main health complaints and took account of the fact that the applicant may, at times, find it difficult to remember to take medication for this illness, but was entitled to find that it did not involve a great deal of effort for the applicant to adhere to the medication regime should he be made homeless.

LJ Henderson stated that the matter of Lambeth’s handling of the applicant’s mental health issues was “more difficult to evaluate”.

Considering the applicant’s mental ill-health

The applicant, Mr Guiste, is a young man of 23, who, in addition to suffering from hypoparathyroidism, had experienced mental ill-health for many years. Throughout the lifespan of the application Mr Guiste’s mental health was considered in a number of medical reports and assessments. LJ Henderson acknowledges that the “…most authoritative” assessment of these was in a psychiatric report prepared by Dr Judith Freeman, a fellow of the Royal College of Psychiatrists who was instructed by Mr Guiste’s solicitors as part of the original review submissions.

Dr Freedman prepared her report after meeting with Mr Guiste and prepared considered analysis of Mr Guiste’s own assessment of his situation, as well as her own professional opinion. Importantly, Dr Freedman’s report fully considered the likely impact of homelessness on Mr Guiste’s conditions, properly applying the parameters of the priority need test outlined in Hotak and subsequent cases, namely considering a person’s vulnerability if that person were to become homeless. Dr Freedman’s report states that Mr Guiste’s symptoms would be at risk of worsening as a result of homelessness and that he would particularly “be at risk for command hallucinations, demanding that he self-harm and/or hang himself”.

Lambeth’s use of outsourced medical expertise and consideration of applicant's evidence

Lambeth council, as with many other councils in England, employs a private company to carry out medical assessment for certain purposes, including to assist in determinations as to whether a person has priority need within the meaning of Section 189 (1) (c) of the Housing Act 1996. In this case, medical reports were provided by Now Medical. Assessors from Now Medical did not meet with Mr Guiste and did not speak to Dr Freedman, as requested by Mr Guiste’s advisers. Rather, their assessment was based on Mr Guiste’s medical records, which included the report from Dr Freedman.

While the assessments carried out by Now Medical were also conducted by psychiatrists, the judgment points out that these doctors were “less highly qualified than she is, and (more importantly) they have never met or interviewed Mr Guiste”. LJ Henderson found that the reviewing officer could only depart from the view set out by Dr Freedman that the applicant would not be significantly more vulnerable if he were to become homeless by “providing a rational explanation of why she was doing so”.

Furthermore, Lambeth’s review decision itself accepted that Mr Guiste may be at risk of “further suicidality in response to various stressors), a view consistent with Dr Freedman’s own prognosis, but then went on to state that there was no current evidence to suggest that Mr Guiste would experience harm of deterioration as a result of homelessness. LJ Henderson categorised this finding as “a rejection of Dr Freedman’s firmly stated opinion to the contrary (without) any clear indication why (the reviewing officer) took this view, especially as she appeared to accept the likelihood of further suicidality”.

Case outcome

LJ Henderson found that the parts of the review decision dealing with the applicant’s mental health and the significance of Dr Freedman’s opinion did not meet the requisite standard and that this should be characterised as an error of law, “because there has been a breach of the principles of rationality and fair decision-making”. As a result of deficiencies in the reviewing officer’s decision, the court quashed the review decision and referred the matter back for consideration by an experienced review officer.

A further issue was raised during the appeal by Lambeth’s legal team. This hinged on the question of “functionality” and whether the priority need test requires that a person’s “functionality” needs to be affected. This argument stems from a paragraph in Panayiotou V LB Waltham Forest [2017] EWCA Civ 1624:

One of the themes that runs through previous decisions of this court is that there must be a causal link between the particular characteristic (old age, physical disability etc) and the effect of homelessness: in other words some kind of functionality requirement. We now know that the functionality is not an ability to “fend for oneself” nor an ability “to cope with homelessness without harm”. But if it is not that, what is it?

LJ Henderson dismissed this submission, arguing that the judge in the Panayiotou case had made these observations “in the context that there must be a causal link between the particular characteristic relied on under section 189 (1)(c) and the effect of homelessness” and that such observations were not intended to “introduce a new and additional test, over and above the requirement for a causal link between the relevant characteristic and the effect of being made homeless”.

Relevance to Northern Ireland

Although a decision in the Court of Appeal for England and Wales is not binding on courts in Northern Ireland, this judgment is persuasive and should be cited in relevant homelessness reviews, particularly those in which due consideration has not been given to an applicant's own medical evidence or where such evidence has been disregarded by a person without or with less expert medical qualifications without the reviewing officer providing a rational explanation for this position. 

Changes since the judgment

Although no further information is available about the ultimate outcome of Mr Guiste’s application with Lambeth Council, there have been further developments in relation to the outsourcing of medical expertise in homelessness cases.  This follows a number of high profile judgements which were heavily critical of the practice and detailed investigative reporting from a number of sources, including The Bureau of Investigative Journalism, The Independent and The Islington Gazette.

The Bureau of Investigative Journalism and the Islington Gazette have both written articles setting out concerns around local government’s ongoing reliance on such outsourcing to assess its legal responsibilities to households threatened with homelessness.  The Bureau reported that at least 118 councils across England have used NowMedical since 2014 and explained that the company charges £35+VAT for an assessment of a person’s vulnerability, producing an average of 55 such reports a day.

In January 2020, Islington Council announced that it would stop outsourcing this service to Now Medical once the existing contract ends in March 2020, after hearing “troubling stories” about how assessments are carried out. Instead, the council announced that it will hire its own specialist occupational therapist to carry out assessments in the hope that this will add more “depth and rigour” to the assessment process.