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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lambeth London Borough Council v Ireneschild [2007] EWCA Civ 234 (16 March 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/234.html Cite as: [2007] EWCA Civ 234, [2007] HLR 34 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE LLOYD JONES
2006/2145
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE HALLETT
and
SIR PETER GIBSON
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Lambeth London Borough Council |
Appellant |
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- and - |
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Ireneschild |
Respondent |
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Holbrook (instructed by Sternberg Reed) for the Appellant
Richard Drabble QC and Kate Markus (instructed by Bindman & Partners) for the Respondent
Hearing date: 5th February 2007
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Crown Copyright ©
Lady Justice Hallett:
Background
History
"The risk to Linda's independence is substantial. She stated that the lack of appropriate accommodation is putting a big strain on her relationship with her sons. Linda has also stated that this property was a family home that was divided into two maisonettes. Might it be suggested that a way forward would be to take the relevant steps to have the partition removed and the property to be returned into a family home. By undertaking this, it would meet Linda's housing need as the downstairs property has all amenities on one level and enable her sons to have the upper part of the property which will enable them to continue in their caring roles. In the event that the above does not occur, Linda's current care arrangement is likely to break down and she will require extensive package due to high care need. However, it is recognised that this is Housing's decision."
"... it would be envisaged that for the foreseeable future Ms Ireneschild needs to be in a situation in her accommodation which allows her to access the bathroom at short notice, taking into consideration her relatively poor mobility and unsteady gait.
….Her gait will continue to be unsteady and she will persist in having a high risk of falls which may increase as time progresses."
"In my original report dated 27th January 2003 I was given to understand that stairs were managed using bilateral mopstick rails, a lot of the strain was taken via upper limbs and that the client was at risk climbing stairs. I note from the independent report by Ms Sharmin Campbell dated 7th March 2006 that: 'Ms Ireneschild is unable to negotiate stairs when she is ill or tired. She is then carried by her sons to the flat when tired after a night out: and to the bathroom/bedroom when she is ill'".
He cited Ms Campbell's assertion that there was a serious breach of duty on the part of the authority and added:
"Please note that when I carried out my original assessment in 2003 I was not made aware of client being carried up the stairs by her sons on occasion. I now add this to my updated assessment and will act accordingly."
Under the heading "Safety Abuse Neglect (Risk of Falls)" he said "client is at risk on stairs". He also stated that the Respondent's carers "will be at risk if they carry client up/down stairs." He wanted the question of "stair access" addressed as a matter of urgency. Finally, on a scale of "critical", "substantial", "moderate", "low" to "not applicable" he assessed her eligibility against community care criteria. Health and Safety, Autonomy, Personal Care, Domestic routines, Leisure, education, employment, and training were all assessed as "substantial". The "overall risk to independence" was also assessed as "substantial". I shall return to the significance of his categorisation of the Respondent's needs as "substantial" later in this judgment. In short: if the Appellants accepted his conclusions on the Respondent's needs, the Appellants would provide funding to meet them. However, they did not accept his conclusions.
"I asked Ms Ireneschild if she had any falls or accidents in recent years. She informed me that the last incident was approximately 8 years ago when she had a fall in the bathroom and an ambulance was called. She added that most of the time she is able to "rescue" herself and thereby prevent a fall. She said if she was unsure of herself she would call one of her sons to assist her."
"I accept that Ms Ireneschild may require additional assistance with her mobility when she is tired but I also note that she is most likely to be tired when she has stayed up all night "clubbing". I would suggest this is a life style choice that Ms Ireneschild makes for herself.
"In recognition that a property with stairs is far from ideal for a person with limited mobility, I have awarded the maximum number of medical points for transfer to a more suitable property, i.e. 25 points. This case does not fit the criteria for an emergency transfer on medical grounds namely:
'Cases will only be placed in Group B [emergencies] if the household has one or more members with a currently life-threatening illness or disability, whose housing circumstances are, in the opinion of the Medical Adviser, affecting their health very severely.' (Lambeth Housing Allocation Scheme -- second edition)
In addition to the maximum number of points, I make the following property recommendations in line with the OT report by Manuela Schutte: general or mobility standard property situated on the ground or first floor serviced by a lift, with no internal stairs and level access outside the property, with central heating and a level access shower, or the capability to install one."
"Ideally Ms Ireneschild would be housed in accommodation on either the ground or first floor which could be accessed without steps or stairs and with no internal stairs. However, there is considerable demand within Lambeth for social housing of this description and it may be some time before an offer of such housing could be made by the Council."
"Ms Ireneschild has a need for modest support in her home in order to maintain her independence and ability to function well in her current accommodation. If her circumstances changed, such as could happen if her sons ceased providing so much support, then Ms Ireneschild's care package would be reviewed and her support could be increased."
Her overall eligibility band was assessed as substantial meaning that the authority would meet the needs as assessed, but these were support service needs not her housing needs. It is common ground the assessor did not find any "eligible need" arising out of the present accommodation.
Legal Framework
"(1) ….. where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority --
(a) shall carry out an assessment of his needs for those services; and.
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
(2) If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority –
(a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and
(b) shall inform him that they will be doing so and of his rights under that Act. ….."
"In my judgment Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. …Parliament by section 7(1) has required local authorities to follow the path charted by the secretary of state's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
"3. Councils should assess an individual's presenting needs, and prioritise their eligible needs, according to the risks to their independence in both the short and longer term were help not to be provided. Councils should make changes in their practice to take a longer term preventative view of individuals' needs and circumstances. With regard to their resources and other local factors, councils should focus help on those in greatest immediate or longer term need….
General Principles of Assessment:
37. In responding to the individual's account of his/her presenting needs, professionals should explore the intensity of particular needs including the physical pain, distress or disruption they cause, and the instability and predictability of problems, both on a day to day basis and over longer periods of time. They should consider with the individual any external and environmental factors that have caused, or exacerbate, the difficulties the individual is experiencing. The number of different needs faced by individuals, how needs interact, and how individuals react to the difficulties facing them are also important. Together, the individual and professional should look at the strengths and abilities that the individual can bring to bear on the presenting needs.
38. Assessment should be co-ordinated and integrated across local agencies relevant to the service user group….
40. As presenting needs are fully described and explored, the individual and professional should consider and evaluate the risks to independence that result from the needs both in the immediate and longer term. This evaluation should take full account of how needs and risks might change over time and the likely outcome if help were not to be provided. The evaluation of risks should focus on the following aspects that are central to an individual's independence:
Autonomy and freedom to make choices.
Health and safety including freedom from harm, abuse and neglect, and taking wider issues of housing and community safety into account.
The ability to manage personal and other daily routines.
Involvement in family and wider community life, including leisure, hobbies, unpaid and paid work, learning and volunteering.
41. Individuals and professionals should consider risks faced not only by individuals but also those close to them, such as carers. They should consider which risks cause serious concern, and which risks may be acceptable or viewed as a natural and healthy part of independent living.
42. Eligibility for an individual is determined following assessment. As part of the assessment, information about an individual's presenting needs and related circumstances is established and should be recorded. This information is then evaluated against the risks to his/her autonomy, health and safety, ability to manage daily routines, and involvement in wider community life. ……These identified risks to independence will then be compared to the council's eligibility criteria. Through identifying the risks that fall within the eligibility criteria, professionals should identify eligible needs.
43. Once eligible needs are identified, councils should meet them….."
Grounds of Appeal
1. Failure to consider the Rogerson report
"38. There is nothing in the new assessment of August 2006 to indicate that the author has had any regard to these matters in Mr Rogerson's assessment. There is no reference in the new assessment to this report, although the assessment does refer to a report of Tina Thorpe, which, in turn, refers to it without addressing it further.
39. The community care assessment does not address Mr Rogerson's conclusions in relation to the risk of falls. By contrast, the conclusions in the care assessment itself in relation to falls indicate that there is no history of falls. The care assessment does not deal at all with risks or needs arising from the current arrangements for manual handling. It does not address the respondent's conclusion that arrangements for manual handling need to be reviewed urgently. It does not deal with the respondent's assessment of all relevant risks to the claimant as substantial. ….
41. His findings as to risk should have been taken into account by the author of the new assessment. It is clear, to my mind, that they were not…..
44. In these circumstances I accept the claimant's submission that the defendant in taking the decision contained in the August 2006 assessments, that there was no eligible need arising out of the accommodation, has failed to take account of matters of importance to be found in the report of its own occupational therapy expert."
"My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their function under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power- e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v. Secretary of State for the Environment, Ex Parte Nottinghamshire County Council [1986] AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
Those remarks may have been directed at a different statutory function in a different era, but, to my mind, they are as pertinent today as they were in the 1980s.
"18. ...These reports were prepared by officers within my department and the opinions stated in them were carefully considered by the council before it made its assessment."
2. Failure to follow statutory guidance
"The FACS guidance requires the defendant to prioritise an individual's needs, taking into account the short and longer terms risks to their independence if help is not provided and to take a preventative view."
"Essentially, the council has found that the Respondent is able to negotiate her way around the property and get into and out of it. The council accepts that there is a risk to the Respondent when using her staircases however it considers this risk to be a small and acceptable risk. There are numerous council service users who manage similar or greater risks in their homes and it is neither possible nor desirable for the council to avoid all risks of this nature."
3. Irrationality
"63. It indicates, at the very least, that there are unsatisfactory features of the present accommodation which have an important impact on the Respondent's health. It may well be a compelling consideration in support of the view that the relevant criteria in relation to the assessment of community cares needs are met. In the present case this does not appear to have happened. On the contrary, the author merely repeats the conclusions of Ms Thorpe.
64. In my judgment, it is not sufficient for the purposes of an assessment under the 1948 Act merely to say that the Respondent's housing needs can be dealt with by the housing department in accordance with its allocation policy. That is all the more so given that the assessor herself noted that there is unlikely to be suitable accommodation available for a considerable time. Rather the impact of the conclusion on housing need, on the question of the need for re-housing as part of community care, i.e. whether there is a need for care and attention which requires new accommodation, should have been considered."
4. Procedural unfairness
"The point is rather whether when enquiries of third persons yield significant information inconsistent with that provided by the applicant, which will substantially affect the decision of the local authority, the local authority must put that information to the applicant and give him an opportunity to comment on it. In my judgment, a local authority is under such a duty. It is supported by principles of fairness and principles of good administration."
i. Ms Thorpe's assertion that there had not been a fall in eight years.
ii. Ms Thorpe's conclusion that the Respondent is most likely to need help on the stairs from her sons when she has been to a club but that this was a lifestyle choice.
iii. Ms Thorpe's conclusion that the Respondent's incontinence problems were effectively addressed.
iv. Ms Thorpe's statement that the Respondent had not had any referral to a neurological or orthopaedic specialist, nor had there been any bio-mechanical assessment of her gait.
During argument before us, counsel focussed on just i. and ii.
"In the present case it appears that the author of the report relied heavily on the conclusions of Ms Thorpe in her report. On a number of issues Ms Thorpe made findings, and came to conclusions, contrary to the position of the Respondent. Although the information would have been obtained by Ms Thorpe largely from the Respondent herself, I consider that in the context of the present case Ms Thorpe's conclusions should in fairness have been disclosed to the Respondent before they were relied upon in the preparation of the community care assessment."
Sir Peter Gibson:
Lord Justice Dyson:
"Our client has no evidence of any falls (serious or otherwise) from your client, save that she has reported occasional falls. There is, of course, a difference between an actual fall and a risk of falling. We note that in your letter to Devonshires of 28th May 2002, you stated: "our client is able to manage the stairs at her property although she has to take her time over this task and she often requires the assistance of her sons." Although this was over 4 years ago we do not have medical evidence that Ms Ireneschild's ability to manage stairs has decreased."