Court of Appeal quashes homelessness review decision over failure to address issue of mental health properly

The Court of Appeal has quashed a decision by a London borough that a 23-year-old man with physical and mental health issues did not have a priority need for homelessness accommodation.

The appellant in Guiste v The London Borough of Lambeth [2019] EWCA Civ 1758 had lived from childhood with his mother in rented accommodation provided by the respondent housing authority, Lambeth Council.

Since May 2017, however, he has been faced with the prospect of being made homeless.

On 26 May 2017, his mother was found by the council, on review of an earlier decision taken by a housing officer, to have made herself homeless intentionally as she had unlawfully sublet her previous home. Her application for housing assistance under Part VII of the 1996 Act was therefore refused.

Since then, Mr Guiste has continued to live with his mother, but only on a temporary basis. They have been housed in interim accommodation provided by Lambeth pending the outcome of his own application for homelessness assistance (and, more recently, an application by him for judicial review, which the Court of Appeal was told had been stayed pending the outcome of the present appeal).

“So Mr Guiste has not yet experienced the reality of being made homeless, but subject to the judicial review (for which permission was granted on 20 May 2019, and which challenges Lambeth's refusal to accept a fresh homelessness application by him founded on an alleged material change in his circumstances), that will as matters stand be the probable outcome if his present appeal is dismissed,” Lord Justice Henderson said.

The Court of Appeal judge said that the fullest, “and on the face of it most authoritative”, assessment of the appellant’s mental health problems had been carried out, on the instructions of his solicitors, by Dr Judith Freedman, a Fellow of the Royal College of Psychiatrists with more than 20 years’ experience of preparing court reports.

Mr Guiste was not examined by any qualified psychiatrist instructed on behalf of Lambeth. The council had ‘outsourced’ the provision of medical advice in housing cases to an organisation called NowMedical.

Two psychiatric advisers employed by NowMedical prepared reports for the council about Mr Guiste’s application for housing assistance, but neither of them interviewed Mr Guiste or examined him in person. Nor were their qualifications at the same level as Dr Freedman’s, Lord Justice Henderson said.

Mr Guiste’s solicitors proposed a discussion between the NowMedical advisors, Dr Freedman and a doctor who was still his treating consultant paediatriciain. But nothing came of this proposal, the judge said.

On 26 July 2018 an external reviews officer employed by RMG Limited, to whom Lambeth had contracted out the function of carrying out homelessness reviews, issued her review decision. She upheld Lambeth’s original section 184 decision that Mr Guiste was not in priority need for homelessness assistance.

Mr Guiste appealed but in January 2019 His Honour Judge Bailey dismissed all four grounds of appeal he advanced. The first three of these sought to challenge the correctness in law and rationality of the review decision, while the fourth challenged the authority of the external reviews officer to conduct the review process at all, based on an alleged failure by the council to comply with its own standing orders when contracting out the conduct of statutory reviews under section 202 to RMG Limited.

The Court of Appeal dismissed Mr Guiste’s appeal in so far as it sought to establish an error of law in the way the review decision dealt with his physical ill-health.

But Lord Justice Henderson said he found the issue of Mr Guiste's mental ill-health considerably more difficult to evaluate. “I will go straight to the area that causes me most concern: the evidence that Mr Guiste has a history of depressive illness leading to acts of self-harm and/or attempted suicide at times of high stress, or at least to the contemplation of such acts, and the risk that homelessness might significantly increase the probability of Mr Guiste carrying out such acts, with or without fatal consequences.”

The Court of Appeal judge noted that when asked to provide her opinion on how homelessness would affect Mr Guiste's mental health, Dr Freedman's opinion was clear:

"In the short term, I think that Mr Guiste would have increased depression and anxiety. He would be at risk for self-harm and suicide, particularly in response to his auditory hallucinations."

Lord Justice Henderson also set out Dr Freedman's opinion on the question whether Mr Guiste was vulnerable in the relevant sense, where she said that, if he were made homeless, his symptoms would be at risk of worsening, and he would particularly "be at risk for command hallucinations, demanding that he self-harm and/or hang himself."

The Court of Appeal judge said: “This evidence, from a distinguished consultant psychiatrist, and directed to the key legal point in issue, could not in my view be disregarded, and if the review officer was going to depart from it, I think it was necessary for her to provide a rational explanation of why she was doing so.

“The difficulty which I have is that, even on a benevolent reading, I am unable to find any such rational explanation in the Review Decision. On the contrary, I find it very hard, if not impossible, to trace a coherent line of reasoning in paragraphs 66 to 75 of the Review Decision.

“Furthermore, in paragraph 75 [the external reviews officer] appears to have accepted that ‘further suicidality in response to various life stressors’ was not unlikely, which on the face of it appears to be consistent with Dr Freedman's own prognosis. In the very next sentence, however, [the officer] said she thought there was no current evidence to indicate that Mr Guiste would experience harm or deterioration as a result of homelessness.”

The judge said that appeared to amount to a rejection of Dr Freedman's firmly stated opinion to the contrary, but he was unable to find any clear indication why [the officer] took this view, “especially as she appeared to accept the likelihood of further suicidality”.

Instead, the ensuing paragraphs of the review decision veered off into generalities and paraphrases of the Hotak judgment, he said.

“If [the officer] was intending to base her conclusion on the views of the two psychiatrists instructed by NowMedical, she needed to explain why their views should prevail over that of Dr Freedman, when they were less highly qualified than she is, and (more importantly) they had never met or interviewed Mr Guiste,” Lord Justice Henderson said, adding:

“Equally, I find it hard to see how [the officer] could rationally have given more weight to the report of the consultation at St George's Hospital in September 2017 than to the more recent and much fuller report of Dr Freedman, which (unlike the earlier report) also focused on the critical question of the effect that homelessness would have on Mr Guiste's mental health.”

The Court of Appeal  judge said that, “in view of these shortcomings”, he was driven to the conclusion that the review decision did not do justice to this crucial part of Mr Guiste's case.

“The question whether Mr Guiste's mental illness makes him more vulnerable than an ordinary person to the risk of suicide if made homeless is self-evidently a very serious matter, which requires careful consideration of all the relevant evidence and an adequately reasoned conclusion,” he noted.

“While I have every sympathy for [the officer] in the difficult task which she had to perform, I have to say that in my judgment the parts of the review decision dealing with this critical issue do not meet the requisite standard. Such a failure is in my view properly characterised as an error of law, because there has been a breach of the principles of rationality and fair decision-making.”

Lord Justice Henderson said, however, that he did not consider the answer to be so clear that the Court of Appeal could properly conclude, on the basis of the material before it, that the issue of priority need must inevitably be determined in Mr Guiste's favour.

He said the question should be reconsidered by an experienced review officer other than the original officer. Lord Justice Rose and Mrs Justice Theis agreed.

Commenting on the ruling, Mr Guiste’s solicitor, Edward Taylor of Osbornes Law, said the case threw the spotlight on the London Borough of Lambeth and other councils outsourcing decision-making and medical opinions relating to homelessness.

He added: “It is disappointing and worrying that we have had to fight so hard just to ensure that the clear psychiatric evidence in this case is properly considered. Troy is an incredibly vulnerable young man who risks being cut adrift by society if his need to be housed is not treated as a priority.”

Osbornes instructed Martin Westgate QC and David Cowan of Doughty Street Chambers to represent Mr Guiste.