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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Hussain v London Borough of Hounslow [2010] EW Misc 15 (CC) (01 December 2010) URL: http://www.bailii.org/ew/cases/Misc/2010/15.html Cite as: [2010] EW Misc 15 (CC)

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IN THE CENTRAL LONDON COUNTY COURT

		1 December 2010

Nature of the appeal

1. This is an appeal by Mrs Muhibo Hussain, a 31-year-old married Somalian lady, pursuant to s.204 Housing Act 1996 (hereafter "the 1996 Act"), against a decision of the Respondent contained in a Review Decision Letter (hereafter "the RDL") dated 24 May 2010 in which the Reviewing Officer, Ms Rita Chhetri (hereafter the RO), upheld the decision of Ms Rebecca Luty dated 14 April 2010 (hereafter "the original decision") that the Respondent had no duty to provide the Appellant with housing because, although she was eligible for assistance and was homeless, she did not have a priority need as she was not vulnerable within the meaning of s 189(1)(c) of the 1996 Act.
2. The correct legal approach as regards both housing and appeals such as this was not in issue between the parties, and the court is indebted to Mr Carter for the Appellant and Mr Williams for the Respondent for their comprehensive skeleton arguments and concise and realistic oral submissions. I have borrowed extensively from the respective submissions in the drafting of this judgment.

The correct approach for this court as to s204 appeals generally

3. The jurisdiction of the County Court under s.204 of the 1996 Act is limited to errors of law. The scope of these proceedings is equivalent to that of judicial review proceedings in the High Court: Nipa Begum v L.B. Tower Hamlets [2000] 1 WLR 306, CA.
4. The Respondent is the arbiter of fact. The weight to be given to the evidence considered by the Respondent in coming to its decision under the relevant provisions in Part VII of the 1996 Act is a matter for it alone: R v L.B. Hillingdon ex p. Puhlhofer [1986] 1 AC 484 H.L. per Lord Brightman at p.518 (a decision under an earlier Housing Act). This is still the correct approach under the 1996 Act: Adel William v Wandsworth [2006] HLR 42 at 19-20.
5. In Council of Civil Service Unions v Minister of State for the Civil Service [1985] AC 374, 410-11, HL, Lord Diplock summarised the grounds for judicial review as illegality, irrationality and procedural impropriety. In order to succeed, the Appellant must show at least one of these grounds. Included among those grounds may be the taking into account (to the requisite degree of materiality) of matters which ought not to have been taken into account and failing (again subject to materiality) to take into account matters which ought to have been taken into account.

The correct approach for this court as to review decision letters

6. Lord Neuberger has recently given guidance on the correct approach to adopt when considering review decision letters in Holmes-Moorhouse v Richmond-upon-Thames BC [2009] UKHL 7; [2009] 1 WLR 413 at 44-52. In particular, and I make no apology for setting this out in extenso as it represents the touch-stone of the approach to be taken, he stated:

"46. The rights granted by Part VII of the 1996 Act to those claiming to be homeless or threatened with homelessness are based on humanitarian considerations, and this underlines the fact that any challenge to a review decision should be carefully considered by the County Court to whom such challenges are directed. Given that the challenge in the County Court is treated as a first appeal, the responsibility on the Judge considering the challenge is heavy, and, if he or she is satisfied that there is an error in the reasoning which undermines the basis upon which the decision was arrived at, then the decision should obviously be set aside.

47. However, a Judge should not adopt an unfair or unrealistic approach when considering or interpreting such review decisions. Although they may often be checked by people with legal experience or qualifications before they are sent out, review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court's judgment.

48. Further, at least in my experience, and as this case exemplifies, review decisions generally set out the facts, the contentions, the analyses and the conclusions in some detail. To my mind, given the importance, particularly to the applicant, of the issues considered in review decisions, such fullness is to be strongly encouraged. However, as any lawyer knows, the more fully an opinion is expressed, the greater the opportunity for alleging mistakes of fact, errors of law, or inconsistencies. If the courts are too critical in their analyses of such decisions, it will tend to discourage reviewing officers from expressing themselves so fully.

49. In my view, it is therefore very important that, while Circuit Judges should be vigilant in ensuring that no applicant is wrongly deprived of benefits under Part VII of the 1996 Act because of any error on the part of the reviewing officer, it is equally important that an error which does not, on a fair analysis, undermine the basis of the decision, is not accepted as a reason for overturning the decision.

50. Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.

51. Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes, the decision is the only one which could rationally have been reached. In all such cases, the error should not (save, perhaps, in wholly exceptional circumstances) justify the decision being quashed. "

7. This guidance was a development of that given by Auld LJ in Osmani v Camden LBC [2005] HLR 22

"...decision letters under this provision [i.e. s.202(3)] should not be treated as if they were statutes or judgments and subjected to "pedantic exegesis".....It is also important, when looking for the reasoning in such a letter, to read it as a whole to get its full sense" [para 38]

8. In considering the question whether something has not been taken into account when it should have been there is a gloss, namely that it does not follow from the absence of special reference to a particular matter in a review decision letter that the decision-maker has not taken it into account. It is only if there is something which is so startling that one would not expect it to pass without individual comment that the court may be justified in drawing the inference that it has not received any or sufficient consideration: R v Brent LBC ex p Bariise (1999) 31 HLR 50, 58, CA, per Millett LJ.
9. Accordingly I have sought to take particular care to read the challenged RDL as a whole when considering the several and separate criticisms made of it, and to afford an appropriate measure of lee-way as to the means of expression used by the RO. Further, I have sought not to substitute any judgment of my own for any exercised by her: the task for the court is, within the constraints of the authorities, to decide whether the decision was one to which the RO could, and did, come to lawfully.

Priority need

10. Where an authority decides that an applicant is eligible for assistance, the extent of its duty depends on whether she is homeless, has a priority need and became homeless intentionally. In particular:

(a) if the applicant is eligible and homeless but does not have a priority need, the authority is only under a duty to provide her with advice and assistance: s.192(2); whereas

(b) if she is eligible and homeless and has a priority need, the authority must secure accommodation for her occupation; whether it is on a short- or long-term basis depends on whether she became homeless intentionally: ss.190(2), 193(2).

11. A person has a priority need, inter alia, if she is vulnerable as a result of old age, mental illness or handicap, or physical disability or other special reason: s.189(1)(c). This matter concerns vulnerability by reason of mental illness and physical disability.

Vulnerability

12. In R v Camden LBC ex p Pereira (1997) 31 HLR 317, 330, CA, per Hobhouse LJ, it was held that a person was vulnerable if:

"... when homeless, he is less able to fend for himself than an ordinary homeless person so that injury or detriment to him would have resulted when a less vulnerable man would be able to cope without harmful effect. ... A particular inability of a person suffering from some handicap coming within [s.59(1)(c), Housing Act 1985 – the statutory predecessor of s189(1)(c)] to obtain housing for himself can be an aspect of his inability as a homeless person to fend for himself. Such an individual may suffer from some mental or physical handicap which makes him unable to obtain housing unaided and thus makes him unable to cope with homelessness in a way which does not apply to the ordinary homeless person. But it is still necessary, as is illustrated by the decided cases, to take into account and assess whether in all the circumstances the applicant's inability to cope comes within paragraph (c). It must appear that his inability to fend for himself whilst homeless will result in injury or detriment to him which would not be suffered by an ordinary homeless person who was able to cope. The assessment is a composite one but there must be this risk of injury or detriment. If there is not this risk, the person will not be vulnerable."

13. Hobhouse LJ acknowledged that anybody not suffering from one of the disadvantages referred to in s.189(1)(c) ("the ordinary homeless person") may nonetheless suffer an injury or detriment if homeless; for instance, the risk of, say, being robbed in the street or catching an infection is substantially increased if one is homeless. Such a person would not, however, be vulnerable for the purposes of the homelessness provisions.
14. A person's ability to cope (or fend for herself, the expressions being permissibly interchangeable) must be assessed

a) in a composite fashion and

b) on the assumption that he or she is street homeless: Osmani v Camden LBC [2004] EWCA Civ 1706; [2005] HLR 22, CA.

15. Hobhouse LJ's dictum in Pereira was developed by Sedley LJ in Crossley v Westminster CC [2006] EWCA Civ 140; [2006] HLR 26, at [15] thus

"What has to be decided is a single composite test: see R v Camden LBC ex p Pereira (1997) 31 HLR 317, 330. It is not, in other words a progression from vulnerability to its cause but an appraisal of whether the applicant's condition, so far as it comes within the prescribed classes, makes him vulnerable. Here, for instance, it fell for consideration whether not only his condition as a recovering addict but his experiences as a child in care made Mr Crossley vulnerable."

16. There are, thus, two questions for an authority to answer in order to determine whether a person has a priority need:

i) first, does anything that they know about him fall within s.189(1)(c); and

ii) secondly, if so, do such things – taken together – make it more likely that he or she would suffer an injury or detriment than an ordinary person who is homeless (this second question being the composite assessment referred to by Hobhouse LJ Pereira at 330 and by Sedley LJ in Crossley at [15]).

17. So, having assessed the applicant's putative ability to cope when street homeless, this must be compared to the position of the hypothetical ordinary homeless person. The Appellant was only vulnerable if the Respondent was satisfied that she would suffer an injury or detriment that an ordinary homeless person would not suffer.
18. A number of other propositions of law relating to the Pereira test can be derived from Auld LJ's judgment:

i) The Pereira test is simply a judicial guide and should not be applied as if it were statutory formulation [Para 38];

ii) Vulnerability assessments involve detailed questions of fact and judgment of a type local authorities are particularly well equipped to investigate and answer. [Para 38];

iii) Medical evidence may well be presented, but vulnerability is not exclusively or even necessarily a medical question [Para 40];

iv) The courts have recognised the difficult, involved nature of the decision making process, particularly in the context of decisions on vulnerability. As such, courts should be slow to interfere with decisions of Local Housing Authorities;

v) "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 … "

[Auld LJ, Para 34]

Background in this case

19. In November 2009 the Appellant was staying temporarily at various addresses. It appears that it was first on 19 November 2009 that she asked the Respondent to assist her with housing. Despite making what the Appellant's counsel described as extensive inquiries as to whether she was vulnerable, the Respondent did not initially accept a Pt VII application from her. On 29 March 2010, they did accept such an application following representations from her solicitors. No complaint is made about this passage of time.
20. On accepting the Appellant's application, the Respondent came under a duty to make inquiries to satisfy themselves as to whether she was eligible for assistance and, if so, what, if any, duty was owed to her: s.184(1).
21. On 29 March 2010, Rebecca Luty, one of the Respondent's housing officers, interviewed the Appellant and completed a homelessness assistance form. She subsequently contacted the Hounslow Community Mental Health Team who told her that the Appellant was not known to them. She considered information obtained by the Respondent since November 2009, in particular:

i) letters dated 23 December 2009, 17 February 2010 and 25 February 2010 from the Appellant's GP, Dr Vipin Patel;

ii) an opinion dated 12 January 2010 from the Respondent's medical adviser, Dr John Keen of Nowmedical; and

iii) representations from the Appellant's solicitors dated 5 March 2010 (which were not material and not before the court).

22. Once an authority has determined whether a duty is owed, it is required to give the applicant written notification of its decision: s.184(3), (6). If any issue is decided against the applicant's interest, it must give reasons for its decision and inform the applicant of his or her right to request a review of the decision within 21 days of being notified of it: s.184(3), (5).
23. On 14 April 2010 Ms Luty notified the Appellant that the Respondent had decided that it had no duty to provide her with accommodation because, although she was eligible for assistance and homeless, she did not have a priority need as she was not vulnerable - the original decision referred to above.
24. An applicant has a statutory right to ask the authority to review, inter alia, any decision as to what duty (if any) is owed to him or her under ss.190 to 193 and 195 to 197 (duties to persons found to be homeless or threatened with homelessness): s.202(1)(b).
25. On 22 April 2010, the Appellant's solicitors asked the Respondent to review the original decision. I was not asked to look at any material from the solicitors.
26. On review, the authority may have regard to information relevant to the period before the original decision (but only obtained thereafter) as well as to matters occurring after the original decision: Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57; [2002] 1 AC 547, HL.
27. The review was carried out by the RO. She made one further set of enquiries – a letter dated 29 April 2010 to Dr Patel. After some chasing, Dr Patel replied by letter (or fax) dated 24 May 2010. I return briefly to that letter below. It is inferred that it was faxed because the RDL is dated the same day. The Appellant does not suggest that any appearance of haste vitiates the decision of the RO. The RDL notified Mrs Hussain that the RO had decided, on behalf of the Respondent, to uphold the original decision.
28. Mrs Hussain was dissatisfied with the review decision and on 11 June 2010, within the statutory time limit, appealed to the Uxbridge County Court. On the same day, the appeal was transferred to the Central London County Court.
29. Before addressing the grounds on which it is sought to impugn the review decision, I have found it helpful to set out a summary of the RDL, and I have read it with care and several times to establish a fair view of its contents and structure, bearing in mind that it is not to be construed over-strictly or made the subject of "nit-picking". In referring to the Grounds of Appeal I have taken them as 1 to 6, notwithstanding that they are set out as 1(a) to (c), 2,3 and 4. I have also replaced the navigation used by counsel (there being no numbers on any paragraphs in the RDL) of "5^th page 3^rd paragraph" with a single sequence of numbering, following the shape used by counsel. For the avoidance of doubt, there is appended to this judgment a copy of the RDL so numbered.
30. Paragraphs 6 to 14 set out the law and reference to the Homelessness Code of Guidance for Local Authorities (the Code), and are uncontroversial. Paragraph 15 sets out the bare background, again uncontroversially, and paragraphs 16-18 list the fruits of the Respondent's enquiries and the material taken into account.
31. Then paragraphs 19 to 34 set out, severally and one by one, the five areas of potential vulnerability and come to five identical and several conclusions on each of them, all couched in classic Pereira terms, adverse to the Appellant: paragraphs 19 to 22 (depression), 23 to 27 (gall bladder stone), 28 and 29 (high blood pressure), 30 and 31 (aches and pains) and 32 to 34 (mobility)
32. In relation to depression there is recited at paragraph 21 that it was being treated at basic level only and that Dr Keen "did not feel that your depression hinders your ability to fend for yourself without injury or detriment when street homeless". That part gives rise to the 4^th Ground of appeal as being a material error of fact (as to what Dr Keen in fact said) or irrationality in the alternative. The 1^st Ground of appeal also touches on this, as to whether the RO really did apply the Pereira test as to the risk of injury or detriment when street homeless in relation to depression given the terms of paragraph 52, set out below.
33. In relation to mobility at paragraph 32 the RO said that "You suggest that you can walk short distances between bus stops and buses but are unable to walk long distances as this makes you dizzy and prone to falls". The 5^th Ground of appeal asserts that the RO did not have regard to the risk of injury or detriment stemming from recurrent falls, in relation to this paragraph and 47 quoted below. At paragraph 34 the RO concluded, immediately before the apparent Pereira conclusion on mobility, that the Appellant's at least fortnightly visits to her GP demonstrated "that your mobility is not hindered to the extent to refrain (sic) you from attending regular and frequent appointments". That, again coupled with paragraph 47 set out below, gives rise to the 3^rd Ground of appeal namely whether too strict a test was applied in relation to mobility
34. Under a capitalised heading "Composite Assessment" (and an alleged failure to apply a composite test gives rise to the 2^nd Ground of appeal):

34. i) paragraph 35 recites information about the support available to the Appellant, her knowledge of entitlements, her being literate and numerate, her basic knowledge of the housing market, the ways in which various agencies could support her, her regular attendance on her GP and her keeping abreast of her housing situation.

34. ii) Paragraphs 36 to 39 (all very brief, but I am following Counsel's method of numbering) state that the RO has taken all of the Appellant's circumstances into account and has looked at the case "Contextually", "Comparatively" and "Compositely".

34. iii) Still under the overall heading "Composite assessment"

a) Under a sub-heading "Contextual",

1) paragraph 40 says that the RO has considered the medical circumstances as summarised above, and the Appellant's ability to cope when homeless (and it is clear that she means "street homeless", described as "without the prop of accommodation").

2) Paragraph 41 concludes that the depression is adequately treated and that although the uncertain housing situation may lead to her being upset and depressed, the RO did not feel that it would hinder the Appellant from managing her daily affairs when street homeless.

3) Paragraph 42 states that the gallstone and high blood pressure are treatable and minor and do not render the Appellant unable to deal with daily tasks, and paragraph 43 says that whilst the stress of street homelessness may increase blood pressure, that could be treated.

b) Under a sub-heading "Comparative"

1) paragraph 44 says that the RO has established the basic daily and medical needs and has compared the Appellant's ability to carry out these activities against the notional ordinary homeless person "to establish whether you will suffer injury or detriment as a result". (It is, I think, plain enough or at least a fair reading of the RDL, that what follows represents that comparison, under the general rubric as to injury and detriment).

2) Paragraph 45 and 46 set out the basic needs, and the medical needs.

3) Paragraph 47 compares the Appellant's mobility with that of an ordinary homeless person, noting that "[the Appellant was] not able to walk far distances as you become dizzy and prone to falls. However even in light of this, your mobility is not hindered to such an extent so as to render you completely unable to move around. You can, and currently do, use public transport to get from place to place and even between short distances and this mode of transport will continue to be available to you if street homeless". As stated, this part gives rise to the primary element of the 3^rd Ground of Appeal, namely whether too strict a test was applied. It also forms part gives rise to the 5^th Ground namely whether the RO failed to have regard to the risk of injury etc from the Appellant's dizziness and falls.

4) Paragraph 48 deals with the Appellant's current and future (if street homeless) future support as regards washing, cooking and shopping. There is a further reference to the ability to use public transport; the RO concludes that the Appellant "[w]hen compared to the ordinary homeless person… can carry out daily activities to meet your basic needs".

5) Paragraph 49 says, in relation to the Appellant's comparatively greater need to visit a GP or other medical professional, that it would not, compared with an ordinary homeless person, significantly "hinder your ability to cope on a daily basis"

c) Under a sub-heading "Composite" (and the structure of the RDL could have been clearer but leeway is to be afforded)

1) paragraph 50 says that the RO has taken all of the Appellant's circumstances into account and has had regard to the "general factors (as directed by the Code)"

2) under a further heading, "(a) The nature and extent of your disability which may render you vulnerable" (as with (b) and (c), patently derived from 10.16 of the Code), paragraph 52 notes the depression, gall stone and high blood pressure as adequately treated, and refers to mobility issues having been "dealt with above". The RO continues "I do not believe that your conditions will worsen when you are street homeless as they can be adequately treated through increased medication and support which will be available to you when street homeless". It is this which is said to betray the failure to conduct a genuine Pereira exercise in relation to depression (1^st Ground)

3) under the further heading "(b) The relationship between your disability and your housing difficulties" various matters are set out including paragraph 55 where it is noted that the depression, negative outlook, aches and pains and high blood pressure had not prevented the Appellant from taking proactive steps, seeking advice and attending appointments relating to housing (there is no reference here to mobility as such). It is said by the Appellant that this part of the RDL cannot genuinely have been the product of a composite exercise because, it is said, 10.16 in the Code has "nothing to do with the composite test" (2^nd Ground)

4) under the further heading "(c) The relationship between your disability and other factors", paragraphs 59 to 61 recite various matters relating to treatment and counselling relevant to the Appellant's problems. It is not clear where that information fits, but it forms no part of the appeal.

35. Finally, under the heading "Conclusion" the RO gives her decision at paragraph 62: "[t]aking all of the circumstances of this case into account and looking at each of these factors both separately and all together". It is not, I think, suggested that that form of words alone would save the decision if it were otherwise apt to be impeached although they are relied upon by the Respondent as set out below.

Grounds of Appeal

36. Six issues are raised (the 6^th, not thus far mentioned, being whether the RO failed to give reasons for rejecting an opinion of the Appellant's GP expressed on 23 December 2009).

Ground 1. Did the RO fail to ask whether the Appellant would be at risk of injury or detriment as a result of her depression (1(a))

Submissions

37. It is accepted by the Appellant that the Reviewing Officer set out the correct test at paragraph 9. The complaint is that she did not apply it. In particular, she said at paragraph 52:

"I do not believe that your conditions will worsen when you are street homeless as they can be adequately treated through increased medication and support will continue to be available to you when you are street homeless"

38. The Appellant submits that this betrayed a fundamental misunderstanding of the test that the RO was required to apply. The question was whether the Appellant would suffer a greater detriment or injury than the ordinary homeless person and not whether her condition would deteriorate if homeless. Moreover, it was said, the RO focused on the Appellant's ability to cope and not whether she would suffer injury or detriment: see paragraphs 44 to 49 in which, it was said, she fails to address injury or detriment.
39. The Respondent submits that it is clear that, in addition to setting out the Pereira test correctly at the beginning of the review decision (paragraph 9), the RO also applied it correctly in relation inter alia to the Appellant's depression thus:

i) At paragraph 22, having undertaken an evaluation of the evidence relating to the Appellants depression, the RO stated that she was of the opinion "that your depression does not render you less able to fend for yourself than the ordinary homeless person so that injury or detriment to you will result when a less vulnerable man would be able to cope without harmful effects" .

ii) the RDL evidences the fact that the RO dealt with the comparison between ability of the Appellant to fend for herself as compared to an 'ordinary homeless person' at paragraph 38 and paragraphs 44 to 49, thus undermining the Appellant's charge that she 'fundamentally misunderstood the test': had she incorrectly applied the test by asking, simply, 'will the Appellant's conditions worsen when street homeless' (as the Appellant suggests she did) there would have been no need to engage in this comparative analysis.

iii) the RO's conclusion that she did not believe that the Appellant's "conditions will worsen when you are street homeless as they can adequately be treated through increased medication and support..." (paragraph 52) should be understood in the context it was written and in light of the letter read as a whole.

iv) the passage quoted by the Appellant comes under a heading 'The nature and extent of your disability which may render you vulnerable'. In accordance with the Code of Guidance (para 10.16) the RO was simply examining the nature and extent of the Appellant's disability and, in particular, the nature and extent of the Appellant's disability if she were made street homeless. This is in accordance with the requirement that the authority assesses and applies the test on the assumption that the Appellant is street homeless: Osmani

v) accordingly, having concluded that the Appellant's medical conditions would be no worse when she was street homeless, there was no reason to revisit her initial conclusions as to vulnerability set out elsewhere

vi) the allegation that the RO focused on the Appellant's ability to cope and not whether she would suffer injury or detriment is also inaccurate:

a) the Appellant's criticism that the RO failed to consider whether she would suffer injury or detriment at paragraphs 44 to 49 is erroneous. First, it is to be noted that she clearly assesses this matter at paragraphs 19 to 34. Secondly, at paragraphs 44 to 49 the RO begins by assessing the Appellant's ability to cope in relation to her basic needs (as opposed to medical needs) as against an ordinary homeless person. She concludes that the Appellant is no less able to fend for herself in relation to her basic needs than an 'ordinary homeless person', stating: "When compared to the ordinary homeless person, I am of the opinion that you can carry out daily activities to meet your basic needs" (paragraph 48). It follows that, in relation to her basic needs at least, the Appellant would not suffer more harm (i.e. injury or detriment) than would an ordinary homeless person.

b) in contrast, in relation to the Appellant's medical needs, the RO concludes that the Appellant's disability hinders her ability to cope to some degree because she is required to visit the GP with increased regularity (as compared to a 'normal homeless person'). However, it is clear from her subsequent reasoning that the RO concluded that this did not result in the Appellant suffering a detriment (which a 'less vulnerable person' would not have suffered). She stated: "You have demonstrated an ability to visit your GP surgery regularly and I believe that you can continue to do so without the prop of accommodation." (paragraph 49).

vi) In any event, it is contended that the criticism of the review letter in this regard falls into the twin traps of treating Pereira as a statutory test and taking an overly technical view of the language used, both warned against by the higher courts.

40. In oral submissions, counsel for the Appellant drew attention to the fact that the Pereira test is referred to under each of the headings relating to the various individual identified potential sources of vulnerability – and in identical terms save as to the source itself and suggested that there was a lack of reasoning as regards the individual conclusion relating to depression.
41. The Respondent countered out that lack of reasoning was not a ground of appeal being advanced, and that the RO would probably be criticised for reciting the conclusion in terms of the test and for not so doing – "damned if she did, damned if she did not". In any event, it was plain that the right test was expressly considered both there and also in paragraph 44 in that part of the RDL where the RO reviewed the Appellant's ability to carry out her basic needs (once homeless) in comparison to an "ordinary homeless person". At worst, the reference to deterioration at paragraph 52 was an inconsistency with the reasoning at paragraphs 44 to 49, or part of a less than ideal process of examining risk now and then looking at the situation when street homeless. In any event, if the RO had determined, as she had, that the Appellant was able to cope in the future if homeless for her basic and medical needs, the question of injury or detriment did not arise.

Discussion and Conclusion

42. Having reviewed the RDL overall, I am satisfied that it did take into account the risk of injury or detriment from depression. One only has to read paragraphs 19 to 22 to see that process. There is no suggestion that the summary there of the GP's input was unfair or incomplete. There is an attack on the sentence in paragraph 21 relating to what Dr Keen actually said about injury and detriment, but that is a separate matter. Depression is taken into account at paragraph 41 where the RO said that she did not feel this would "hinder you from managing your daily affairs when street homeless". Arguably that would not be enough if it stood alone (although in my view it would: if the RO thought that the Appellant would not be hindered at all, then she could legitimately hold the view that she would not be less able to cope than the normal homeless person so that injury or detriment might result). However, it does not stand alone. A comparison had already been done at paragraphs 19 – 22.
43. There is no reference to depression under the heading "Composite Assessment/Comparative" (paragraphs 44 to 49). Under "Composite Assessment/Composite" at paragraph 52 is the reference of which complaint is made. This relates to one of the headings in 10.16 of the Code – each of which deals expressly with vulnerability i.e. the extent to which there is a comparatively higher risk of injury or detriment. I am satisfied that the RO did not simply ask herself the "wrong" question – whether the condition would or might deteriorate. She was, I think, considering one further aspect of the future, homeless, situation having already addressed others at paragraphs 44 to 49 (which do not address depression but do look forward to prospective homelessness and do deal with risk of injury and detriment) and having already concluded that there was no enhanced risk at paragraph 22. Other references to depression, at paragraphs 55 and 60, show the RO's permissible and unchallenged view of the lack of severity of the depression.
44. It was not ideally framed, the RDL in this respect, but giving it a fair reading overall I am quite satisfied that the RO did not fail to take into account the risk of injury or detriment due to depression.

Ground 2 Did the RO apply a composite test (1(b))

Submissions

45. It is submitted by the Appellant that the RO first isolated each potential cause of vulnerability and examined it on its own (paragraphs 19 to 34). Then, she purported to undertake a "composite assessment" (paragraphs 35, 39 and 50 to 61). In particular, she said:

"I have taken all of your circumstances into consideration and have given regard to the general factors (as directed by the Code of Guidance): ..." (paragraph 50)

46. Although, says the Appellant, she did not identify which part of the Code of Guidance she had regard to, it must have been para.10.16 which reads:

"Housing authorities should have regard to any advice from medical professionals, social services or current providers of care and support. In cases where there is doubt as to the extent of any vulnerability authorities may also consider seeking a clinical opinion. However, the final decision on the question of vulnerability will rest with the housing authority. In considering whether such applicants are vulnerable, authorities will need to take account of all relevant factors including:

i) the nature and extent of the illness and/or disability which may render the applicant vulnerable;

ii) the relationship between the illness and/or disability and the individual's housing difficulties; and

iii) the relationship between the illness and/or disability and other factors such as drug/alcohol misuse, offending behaviour, challenging behaviours, age and personality disorder."

47. Paragraph 10.16, appearing beneath the heading "Mental illness or learning disability or physical disability", is thus nothing to do with a composite test, it is said. Although the RO said that she had looked at the Appellant's case compositely, her understanding of what this involved was wrong; for instance, it is one thing to find that a person with mental health problems would not suffer an injury or detriment if street homeless but quite another to say that such a person who had mental health problems plus other factors would not.
48. The Respondent submits that, looking at the RDL as a whole – as the Court must -- the clear answer is that the RO did apply a composite test. Although the RO began the RDL by assessing the potential causes of vulnerability individually, she then went on to consider whether, when assessed compositely, they gave rise to vulnerability. This is said to be established from the following:

i) she explained at paragraph 9 that she gave particular consideration to, inter alia, paragraph 10.14 of the Code of Guidance, which specifies, "The assessment of the applicant's ability to cope is a composite one taking account all of the circumstances"

ii) under the sub-heading 'Composite' (paragraph 50), the RO indicates that she had "taken all of your circumstances into account" and repeated as much in the 'Conclusion' (paragraph 62) where she said that "looking at each of these factors separately and all together, I find that you are not in 'priority need...' which demonstrates both that the RO was aware of the correct composite approach and that she had applied it.

iii) It is undeniable that she took a composite approach in the section entitled 'Composite'. For instance, when considering the relationship between the Appellant's disability and her housing difficulties, the RO noted that the cumulative effects of "depression, negative outlook, aches and pains and high blood pressure...has not prevented you from taking proactive steps and looking into you housing options." (paragraph 55)

49. Contrary to the Appellant's contention, it is said, the RO's understanding of what was involved in a composite assessment was not wrong. In particular, there was nothing amiss with the RO framing the composite assessment around the three 'relevant factors' as identified in para 10.16 of the Code. That gives specific advice to Local Housing Authorities about assessing vulnerability in relation to those with 'Mental illness...or physical disability" . In particular, it outlines three relevant factors to which Local Housing Authorities must have regard "[i]n considering whether such applicants are vulnerable." The factors in paragraph 10.16 are therefore central to the assessment of vulnerability; an assessment which, of course, must be conducted compositely. However to say, as the Appellant does, that para 10.16 has 'nothing to do with a composite test' is wholly inaccurate.

Discussion and Conclusion

50. The gravamen of the complaint is that paragraph 10.16 of the Code has nothing to do with the composite test. I do not agree. It is a subset of paragraph 10.14 (which expressly sets out the composite requirement), and it deals specifically with mental illness and physical disability – the relevant factors in this case. Even within 10.16 there is a reminder to take into account all such relevant factors (and all of the 5 features of the Appellant's problems fall within 10.16).
51. As a matter of structure, the RDL is perhaps at its least clear on the matter of composite assessment. There is something of a contrast between the crisp references, at the end of the individual references to each separate problem, to the Pereira test and conclusion, and the absence of any like conclusion in similar terms after that part of the RDL which purports to set out a composite analysis. However, paragraph 52 expressly refers to depression, gallstone and high blood pressure (and aches and pains and lack of mobility are said by the GP to be manifestations of the depression), and paragraph 55 refers to depression, negative outlook, aches and pains and high blood pressure (the gallstone being treated by everyone as immaterial).
52. As for the various possibly self-serving assertions that all matters had been taken into account, I was told by the Respondent that it would be incumbent on the Appellant to identify specifics as to how and why such assertions were inaccurate. I do not decide this point on the basis of what may appear formulaic. I conclude that, although the RDL could have been better structured, the Appellant has not shown that the RO failed to apply the requisite composite test and that the Appellant's complaint as to the inappropriate use of the headings of 10.16 is not sustainable.

Ground 3. Did the RO apply too strict a test in relation to the Appellant's mobility (1(c))

Submissions

53. The Appellant's submissions are, as ever, brief and to the point. The RO said that the Appellant's attendance at her GP surgery at least once per fortnight was:

"demonstrative of the fact that your mobility is not hindered to the extent to refrain you (sic) from attending regular and frequent appointments" (paragraph 33)

and, referring to the Appellant's ability to use public transport, the RO said:

"... your mobility is not hindered to such an extent so as to render you completely unable to move around" (paragraph 47).

54. It is common ground that an authority must be reasonably satisfied that the applicant would suffer injury or detriment: Griffin v Westminster CC [2004] EWCA Civ 108; [2004] HLR 32, CA. The Appellant submits that the RO applied too high a comparative test; being reasonably satisfied that a person would suffer injury or detriment does not require comparison with serious or complete incapacity.
55. The Respondent submits

a) as noted previously, the RO cited the Pereira test correctly (paragraph 9). There is also little doubt she applied it correctly to the question of the Appellant's mobility (paragraph 32)

b) the Appellant's criticisms of the RO's approach at paragraphs 33 and 47 not only amount to a "search for inconsistencies" – an approach which runs contrary to the interpretative guidance given by Lord Neuberger in Holmes-Moorhouse - but also fail to have regard to the context of the specific quotations

c) when read in context of the whole review decision it is clear that the RO did not set the threshold for vulnerability at 'serious or complete incapacity' as the Appellant alleges. For instance, reference to the Appellant's mobility not being "hindered to such an extent so as to render you completely unable to move around" (paragraph 47) was clearly not a reference to physical mobility per se, but rather a conclusion as to her ability to utilise public transport. In other words (and this is evident if one reads the whole of the paragraph) the RO was saying that, like ordinary homeless people, the Appellant would be able to "move around...from place to place" by using public transport.

56. In oral submissions, the Appellant emphasised that no account had been taken of the dizziness and proneness to falling. That is a separate matter (and Ground). Here the argument is whether the RDL set too high a hurdle in relation to mobility per se.

Discussion and Conclusion

57. It is right to say that the separate, several conclusion of the RO as to mobility alone recites dizziness and proneness to falls at paragraph 32, what the Appellant could do at paragraph 33 and at paragraph 34 there is set out the (as repeated) Pereira test/conclusion. In paragraph 34 the mobility issues are described as minor. Other references to mobility are at paragraph 47, quoted above, paragraph 48 (the ability to use public transport to get to and from appointments), 49 - to the same effect – and 52 (by cross-reference).
58. The separate, individual discussion by the RO, as regards mobility, at paragraphs 32 to 34 sets out what, in my judgment, is a test and a conclusion within the ambit of what is unimpeachable. It forms the basis of a Pereira conclusion. The real question, as it seems to me, is whether the consideration under "Composite Assessment/Comparative", in its reference to the Appellant's not being hindered to such a degree as to render her completely unable to move around vitiates the decision.
59. In considering this I have taken into account the other references to mobility, to see where this (on the face of it, somewhat extreme) consideration at paragraph 47 fits, and whether it can sensibly be said that if this was an aberration it falls within what is nowadays known as a "margin of appreciation" i.e. within the range of possible error which is permissible before the decision is required to be struck down.
60. I confess to having been slightly puzzled by the reference. However, in the end without significant doubt but not without a degree of sympathy for the Appellant, and in spite of the attractive and persuasive submissions made on her behalf, I have come to the conclusion that the reference does not demonstrate that the bar was set too high. In her own way, at paragraph 47 the RO has sought to describe the degree of effect of the mobility issue. The passage is descriptive of what the Appellant can and cannot do, in the context of what is plainly a comparative exercise addressing the risk of injury or detriment. Taking those words without any "lawyerly gloss", it seems to me clear that, coupled with what she said at paragraphs 48 and 49 (and indeed 32 to 34), the RO has not fallen into error. Whilst the challenged passage falls within arguably the most important part of the RDL namely the composite and comparative test, so too do paragraphs 48 and 49. Had the RO not made the other references to mobility then the outcome may have been otherwise, but she did. What the RO is saying, taken in context, is that, like normal homeless people, the Appellant was and would be able to move around and use public transport for that purpose in spite of her dizziness and proneness to falls (under the umbrella at paragraph 44 of ascertaining the risk of injury or detriment).
61. In so holding, I have not overlooked argument in reply for the Appellant to the effect that "not able to walk far distances" (paragraph 47) does not equate to what the Medical Details Form at Appeal bundle page 59 records, namely that "App can walk short distances between buses. If she walks longer she gets dizzy and falls", nor that the original decision at bundle p 76 (read by the RO, she says) contained a fair(er) summary namely "you can walk short distances for example between buses, however if you walk for longer you get dizzy and fall".
62. It seems to me that the difference between "far" on the one hand and "longer than short distances (for example) between buses" is not and should not be determinative of a matter such as this. It is also raised only by way of reply and not as a substantive Ground.

Ground 4. Did the RO rely on a material error of fact or make an irrational decision (2)

Submissions

63. The Appellant submits that in E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044, the Court of Appeal held (per Carnwath LJ at [66]) that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. The following conditions must be satisfied:

a) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;

b) the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable;

c) the appellant (or his advisers) must not been have been responsible for the mistake; and

d) the mistake must have played a material (not necessarily decisive) part in the reasoning.

64. Those propositions are not gainsaid.
65. The Appellant argues that in this case, these conditions are established as follows:

i) the RO recited that Dr Keen "did not feel that your depression hinders your ability to fend for yourself without injury or detriment when street homeless" (paragraph 21).

ii) In fact, in his report dated 12 January 2010 (p 50), Dr Keen said that he did not think that: "[the Appellant's] medical issues here are disabling or prevent her from supporting herself if homeless".

iii) it follows that the RO misunderstood or misrepresented Dr Keen's opinion.

iv) this was of crucial importance because the RO used it as the basis for her decision that the Appellant was not rendered vulnerable by reason of her depression (paragraph 22).

v) her finding was based on a material mistake of the true factual position. Alternatively, it was irrational for the RO to base her decision on a material misunderstanding of the evidence.

66. The Respondent submits that

i) the RO's finding that the "DMO did not feel that [the Appellant's] depression hinders [her] ability to fend for [herself] without injury or detriment" was a reasonable interpretation of Dr Keen's opinion in his report dated 12 January 2010, albeit Dr Keen did not make a finding in those exact terms.

ii) Having been asked to consider the Appellant's medical evidence relating to her depression and gallstones, Dr Keen stated that:

"I don't think [the Appellant's] medical issues here are disabling or prevent her supporting herself if homeless. I make no housing recommendations on medical grounds.".

iii) Moreover, he indicated on the medical assessment form that the Appellant was not vulnerable.

iv) Given that Dr Keen was of the opinion that the Appellant's depression was not 'disabling' (a conclusion fortified by his comment that "her depression has not necessitated psychiatric referral and has been treated at basic level only") it follows that Dr Keen's opinion must have been that the Appellant's depression was not sufficiently serious that it would cause vulnerability. That is, the depression would not make the Appellant less able to fend for herself than an ordinary homeless person without injury or detriment.

v) (By way of footnote) a condition must be physically or mentally disabling before one gets to the question of whether the disability makes the Appellant less able to fend for herself than an ordinary homeless person. Without the disability, the Appellant is merely an 'ordinary homeless person' and, by definition, would not be less able to fend for themselves than (another) 'ordinary homeless person'.

vi) Even if that were wrong, had the RO correctly interpreted Dr Keen's letter (in the sense contended for by the Appellant) it would not have made a material difference to her reasoning. Dr Keen concluded that the Appellant's depression was not "disabling"; that her depression was being treated at a "basic level" ; and, having considered her depression and gall stones, that she was "not vulnerable". In no way did the DMO provide support for the conclusion that the Appellant was vulnerable.

Discussion and Conclusion

67. The question(s) which were posed of Dr Keen (at bundle page 50) were these:

"Suffers from depression and gall stones. Need to determine how vulnerable she is if she was made homeless. Would her condition worsen if on the street compared with someone of her age with no medical condition"

68. It was in answer to those questions that Dr Keen opined as quoted. His answer, as set out above, was that the medical issues were not "disabling" and "did not prevent her supporting herself if homeless".
69. The crux of this issue is the extent to which I should treat Dr Keen's answer as, within the lawful margins afforded to the RO, carrying with it the implicit addition "without injury or detriment" as the RO appears to have done.
70. Dr Keen is well-known in this field. Indeed, I should perhaps record that I checked with the parties that they had no objection to my hearing this matter on the grounds that he is and has for many years been my own personal GP. There was no objection. The more important question is the extent to which I should treat him as using a form of shorthand, understood by authorities such as the Respondent, he being a regularly-used medical adviser by authorities in cases such as this.
71. The safe way to proceed is to ascribe no special status to him or the language he used. That said, I have little hesitation in concluding that on a fair reading of the question(s) and answer, and their treatment in the RDL, it was not unreasonable for the RO to treat as implicit in his answer the absence of risk of injury or detriment.
72. This conclusion therefore reinforces my decision in relation to the 1^st Ground as to whether there was a proper Pereira decision in relation to depression, Dr Keen's opinion having formed part of it. However, had I been against the Respondent as regards the interpretation of Dr Keen's answer, I would have decided that there was in any event enough material in the RDL to justify the decision that the Appellant's depression was not such as to make her Pereira vulnerable in relation to Ground 1. In so saying here, as elsewhere, depression for these purposes relates to the Appellant's chronic low mood, anxiety and negative attitude per se, not to those matters which are said to be parasitic on depression namely, so far as is material, the dizziness to which I now turn.

Ground 5. Did the RO have regard to the Appellant's dizziness and falls (3)

Submissions

73. It is common ground that when public authorities make decisions, they must have regard to relevant matters, ignore irrelevant matters and not make irrational decisions: Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223, CA, per Lord Greene MR at 229. A consideration is relevant if the statute expressly or impliedly requires the decision-maker to have regard to it: Wednesbury, per Lord Greene MR at 228; see also In re Findlay [1985] AC 318, 333H-334C, HL, per Lord Scarman. However, and as stated above, it does not follow that simply because something is not mentioned it has been ignored; its relevance must be such that its absence is "startling" R v Brent LBC ex p Bariise (supra)
74. The Appellant submits that on 25 February 2010, Dr Patel reported that the Appellant's depression caused her to suffer dizziness which had led to recurrent falls (bundle p 52, paragraph 2) and that although the RO referred to this in the RDL (paragraphs 32 and 47), she did so in the context of mobility and failed to recognise it as a risk of injury or detriment; her failure to deal with it is startling in the Bariise sense and demonstrates that she did not give it proper consideration.
75. The Respondent submits

i) it is self-evident that the RO had regard to the Appellant's dizziness and falls. She refers to the condition on a number of occasions in the review letter: (paragraphs 32 and 47 as above) Moreover, she had regard to the one letter – that of 25 February 2010 from her GP, which referred to her falls.

ii) the RO's 'failure to deal' with the alleged risk of injury or detriment from the falls was not so startling (in the Bariise sense) that it demonstrated she did not give it proper consideration. It is not 'so startling' because:

a) There was no medical evidence before her to indicate that the Appellant had suffered injury or detriment as a result of the falls, or risked suffering an injury or detriment (as opposed to its merely being an inhibiting factor in terms of mobility)

b) The Appellant's dizziness and falls were mentioned in only one of Dr Patel's letters. They were not mentioned in the: GP report of 7 July 2009 (bundle p43), the letter from Chestnut Practice of 11 May 2009 (this was not in the bundle and I was told it related only to the gall stone), a letter from West Middlesex University Hospital dated 8 July 2009 (again not in the bundle and relevant only to the gall stone, apparently), a letter from Dr Patel of 23 December 2009 (bundle p49), Dr Keen's opinion of 12 January 2010 (bundle p 50), a letter from Dr Patel dated 17 February 2010 (bundle p 51) or the letter from Dr Patel dated 24 May 2010 (bundle p 81)

c) Even in the one letter in which Dr Patel mentions the Appellant's dizziness and falls (p 52) the condition is listed as one of a number of examples of physical symptoms of her depressive illness (note the i.e. and etc ).

76. In essence, and orally, the Respondent argues that, given the absence of any medical evidence as to the fact of any falls resulting in injury, the single reference in the underlying medical material to dizziness and falls, and the absence of any reference thereto in the latest GP letter, it was a matter for the RO to decide to what use she put any fact before her, and she did take into account dizziness in the context of mobility. The absence of any reference to risk of injury (or detriment) from dizziness and falling was not startling given that the material in relation to it was exiguous. The Appellant responded that it was not open to the Respondent to say that it had or was entitled to regard the risk as so low as not to require examination and conclusion, not least because the RDL proceeded on the basis that there was this dizziness and proneness. Either that should have been expressly dismissed (in which case the RDL or RO should have said so and why) or it should have been considered properly as a ground of risk – of physical injury not merely as restricting mobility.
77. The underlying material before the RO as regards dizziness was examined in a little detail; it seemed to me to be necessary to unravel it, given that the complaint is about something not having been taken into account. It was as follows:

i) the GP report dated 7 July 2009 (p 43). As stated, this said nothing material. It is a document which involved filling in a form answering certain questions. The Appellant relies on the fact that it sought only the "main health problems". It does refer to chronic depression and anxiety, high blood pressure and abdominal pain due to gall stone

ii) a Medical Assessment Form dated 2 December 2009 (p 45). This was filled in by a friend on behalf of the Appellant. It refers to depression, high blood pressure, gall stone pain and chronic back and leg pain. There is nothing about dizziness

iii) the GP letter dated 23 December 2009 (p 49). As stated, this said nothing about dizziness, though it does say that the depressive illness "manifests in numerous physical symptoms, mainly no incentive to do anything, generalised aches and pains etc"

iv) Dr Keen's opinion dated 12 January 2010 (p 50). He says nothing about dizziness, but one needs to remind oneself that there was then no such material for him to comment on. He did not see the Appellant (as confirmed by the RO at the footnote to paragraph 16 of the RDL), and there was nothing in any documents sent to him

v) the GP letter dated 25 February 2010 (p 52). As stated this contains the first reference to dizziness: "Her depressive illness manifests in numerous physical symptoms, ie numerous aches and pains, dizziness, which has led to recurrent falls, recurrent abdominal pains etc". I pause to note that there is no express mention of a recent fall leading to the breaking of an arm, which one might have expected if such a thing had occurred.

vi) an entry in a Housing Assessment Form dated (or at least opened) 29 March 2010 (p 53 @ 59) listing at 3.8 under illness/disability "Depression, back pain – phy ?at least ?? every week, high blood pressure, gets dizzy + falls down….."

vii) at 3.11 in the same form: "App can walk short distances between buses. If she walks for longer she gets dizzy + falls. Difficulty with stairs"

viii) a note of interview with Ms Luty, dated 29 March 2009 (p 73) conducted with an interpreter: "App feels dizzy in bathroom + fell over and broke her arm Jan 2010. App doesn't close the bathroom door + advises them to come in if they hear something"

ix) the original decision dated 4 April 2010 (p 75) containing the following references:

a) at 76, top, "Regarding your mobility, you stated that you can walk short distances for example between buses, however if you walk for longer you get dizzy and fall. You stated that you had difficulty with stairs". The source of this will have been the form at (vi) above, which appears to have been used to make notes of part of an interview on 29 March 2010 – no other separate note contains this information.

b) at 76 two paragraphs down: "You also advised that when you are in the bathroom you feel dizzy and have in the past fallen and broken your arm. When you are in the bathroom you leave the door open so that you can be helped if you were to injure yourself again". The source of this is expressly the interview of 29 March 2010, noted at (vii) above

c) at 76a (and this page was in fact missing at the hearing, a fact not noticed until I was drafting this judgment. It has since been supplied and given that it contains a potentially material passage I invited further brief written submissions which were forthcoming with commendable alacrity. I deal with them below): "Your depressive illness manifests itself in aches and pains, abdominal pain and dizziness which has led to recurrent falls". The source of this appears to be the GP's letter, noted at (v) above

x) the letter from the GP dated 25 May 2010 (p 81) in response to the RO's letter of 29 April 2010 (p 80). In that letter the GP says twice that the depression has manifested itself in numerous physical symptoms, mainly various aches and pains, in her body. He makes no mention of dizziness, proneness to falling nor of any recent fall or fracture.

78. The Appellant submits that the letter to which the GP's last was a reply was one which, while highlighting those of 23 December 2009 and 25 February 2010, sought information as to depression per se, though in relation to the earlier letter the RO also asked specifics of "various aches and pains" and "generally is not very well". It is also submitted that the questions are otherwise of a general nature and received what could fairly be described as an unsatisfactory answer, the GP not following the actual questions asked. In any event, the RO's questions related to "current complaints" and not symptoms, and the GP did not answer at all the question as to the effect of the conditions on the Appellant's ability to manage daily tasks. The Respondent, it was said, was under a duty to make enquiries: given that the RO knew that falling was an issue, she was obliged to enquire into the matter and she did not.
79. The Respondent says that failure to make enquiries is not set out as a ground of appeal; the GP's answer was not perfect, but the RO had had to chase already and the time-limit was approaching (though it was, I think, accepted that the 8-week period can be extended).
80. In my invitation for further submissions, I asked whether either party wished to comment on the fact that whereas the GP in the letter of 25 February 2010 and the original decision letter both spoke of actual, recurrent falls, the RDL spoke only of proneness to falls in the two paragraphs relating thereto – 32 and 47.
81. The Appellant submitted that

i) the letter and the original decision show that the fact of recurrent falls was accepted by Ms Luty

ii) the RO appears to have misunderstood or unconsciously misrepresented the GP's evidence because her categorisation of the Appellant being "prone to falls" is not as serious as suffering from dizziness which led to recurrent falls.  Moreover, there was no material – and therefore no factual basis – which entitled her to, in effect, discount what the GP had said

iii) the ground of appeal is that the RO failed to have proper regard to the fact that the Appellant suffered from dizziness and recurrent falls.  The fact that she referred to the Appellant's condition as being prone to falls strongly suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless

82. For the Respondent it was said that, while acknowledging that neither officer had explicitly considered the risk of injury or detriment as a result of the falls, 'prone to falls' in the RDL encapsulates both the Appellant's past history of fall(s) and the risk of future falls. One cannot be prone to falls, if one has never fallen. It was thus submitted that the suggestion for the Appellant that the wording suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless was wrong.
83. The Respondent also repeated the stricture as to not treating the RDL as a "statutory text"

Discussion and conclusion

84. I make, and made, no secret of the fact that this aspect of the appeal has caused me the most thought. There is no reference in the RDL to any risk of injury or detriment arising out of dizziness leading to the risk of a fall. It is dealt with, and falling is mentioned, only in the context of mobility and the relative ability to get around. The question is whether that is startling in the Bariise sense.
85. My first inclination was that it was, and perhaps that is a good moment to judge the matter. If it is startling, then it is likely to be startling at first blush, although I have taken care to revisit that preliminary conclusion since. However, set against that is the argument that, in effect, the RO was entitled to be sceptical about, or at least regard as of less value, such material as there was about falling because it was mentioned by the GP only once, and then in terms which may have tended to gainsay the veracity of the Appellant when she said she had broken her arm (though I note, for what it is worth, that in the original decision Ms Luty referred to the fall and break as being "in the past" rather than specifically as January 2010 as recorded in the interview note).
86. The Bariise question is not just a formula. It makes a court hesitate, perhaps long and hard, before drawing an inference that, because a matter is not expressly referred to, it has not been considered. Accordingly I ask myself the question: given the material available to, and said to have been considered by the RO, and given the rest of her decision and the level of analysis applied to other factors, should I draw the inference that the risk of falling, and consequent injury/detriment from such a fall, was not considered? I do so knowing that the questions of dizziness and falling were addressed in the RDL but in another context. I also specifically caution myself against "nit-picking".
87. I have come to the conclusion that that is an appropriate inference to draw. There is no suggestion in the RDL of any scepticism as to dizziness or proneness to falling. It is taken into account in relation to mobility, so was not discounted altogether (or indeed, on the face of the decision, at all) or by reason of the arguably thin basis of the underlying material. There is no reference at all to the bathroom incident (or its possible recurrence), despite its being in the interview notes and the original decision – whether sceptical or otherwise. On the whole the RDL fulfils its proper function, and does set out the facts relied on and the reasoning leading to the conclusions drawn. The absence of any recital or discussion of the physical risk from falling – whether for or against the Appellant – is striking. Or, in Bariise terms, so startling that the inference is properly to be drawn.
88. I come to this conclusion independently of the difference between the consideration of recurrent falls, as a matter of past reported fact, and whether the Appellant was prone to falls. However, in small measure it fortifies the view to which I have come. In my view there is a difference.

Ground 6 Did the RO fail to give reasons (4)?

Submissions

89. The Appellant submits that the authority must give reasons for rejecting an important aspect of the applicant's case: Hall v Wandsworth LBC, Carter v Wandsworth LBC [2004] EWCA Civ 1740; [2005] 2 All ER 192; [2005] HLR 23, CA, per Carnwarth LJ at [49], in that case the applicant's doctor's view that she was "a very vulnerable person". In this case Dr Patel reported

i) on 23 December 2009, that the Appellant was "fairly vulnerable" (3^rd paragraph); and,

ii) on 25 February 2010, that she was in urgent need of rehousing and it is submitted that the RO failed to give any reasons for rejecting these views.

90. Counsel for the Appellant did not pursue the second of these – correctly so in my view.
91. The Respondent submits

i) On both occasions Dr Patel came to her view on the basis of Defendant's depression and the physical symptoms arising from her depression. The RO dealt at length with both matters in her review letter, explaining why, in her view, the Appellant's condition did not make her vulnerable for the purposes of s.189(c).

ii) These reasons, in effect, explained why she was rejecting the medical view put forward by Dr Patel. In contrast to the Court of Appeal's finding in Hall v Wandsworth LBC, Carter v Wandsworth LBC, the RO's reasons for differing from Dr Patel's view are patently clear.

iii) The fact that the RO did not address these comments explicitly is simply not a failure to give reasons which amounts to an error of law.

Discussion and Conclusion

92. As for the remaining issue, it seems to me that there is a very considerable difference between a statement by a GP that a patient is "a very vulnerable person" and one which says that he or she is "fairly vulnerable". That alone distinguishes this case from that cited. Moreover, it is apparent from the RDL that the Appellant was, and was treated as, "fairly vulnerable" in the generic sense which a GP would mean. Lastly, I accept the Respondent's submission that the RDL deals extensively with vulnerability and that the failure to refer explicitly to the GP's opinion was not a failure giving rise to an error of law. I think I am right when I say that counsel for the Appellant was not putting forward this ground with any particular enthusiasm.

Overall outcome

93. In the circumstances and by reason of my having held that the 5^th Ground of appeal is made out, it falls to be determined to what relief the Appellant is entitled. Happily the parties are agreed that if any ground were upheld then the appropriate course would be to quash the decision and that is the order I make. Following the circulation of a draft of this judgment to the parties, costs have also been agreed as has a minute of the resultant order. The appeal is allowed, the decision is quashed, the Respondent will pay the Appellant's costs to be assessed if not agreed and there will be detailed assessment of the Appellant's publicly funded costs.
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