COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (ADMINISTRATIVE COURT)
Strand, London, WC2A 2LL
Thursday 28th June 2001
B e f o r e :
LORD JUSTICE MANCE
MR. JUSTICE McKINNON
| RAHMA KHANA
(by her litigation friend, the Official Solicitor)
|- and -
|THE MAYOR & BURGESSES OF
THE LONDON BOROUGH OF SOUTHWARK
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Hilton Harrop-Griffiths (instructed by Southwark Legal Services for the Respondent)
Crown Copyright ©
LORD JUSTICE MANCE:
Introduction and factual outline
"Based on this information I am led to conclude that Mr Karim is placing himself and his wife at risk of an accident as there is potential for him to further damage himself and to cause injury to his wife should he drop her while transferring or supporting her to mobilise"
"Summary of assessed needs – Mrs Khana needs:
1. Support from one person with all personal care activities including washing dressing, continence care.
2. Support from one person to get out of bed, transfer, get to standing and to walk a short distance.
3. Full support with all activities of daily living including maintaining a clean, safe environment, getting help in an emergency, shopping, meal, drink preparation, encouragement, support to eat and drink.
4. Encouragement to initiate any activity.
5. Accommodation which is more appropriate to her needs.
6. Income to meet her basic needs."
Southwark's first decision
"On balance it would appear that both Mrs Khan's and Mr Karim's needs would be best met if she were placed in residential accommodation [where] she can receive 24 hour care. The objectives of providing such care is to minimise the risk of accident for both Mr Karim and his wife and to provide Mrs Khan with support to meet her physical and mental health needs. (Please refer to Community Care Assessment dated 20/1/000 for needs list)"
The plan concluded with a note that:
"The offer of residential accommodation has been refused by Mr Karim."
Subsequent expert advice obtained on applicant's behalf
"Mr Karim informed me that he has experienced severe back-pain for about one year. He described having back-pain from the neck down and believes that this may have been caused by having to lift his wife. He is becoming increasingly disheartened at his situation and summarised this when showing me his own and Kazal's medication by saying in English, "we are all sick, in this house – look not good, not good"."
"Overall, he is unhappy at this prospect as he feels that the family should not be broken up. He stated that he would only consider this, as a very last option. Nazanin also stated that would be contrary to Kurdish custom and culture as their older people are seen as being intrinsic to the family unit."
"Based on my assessment, I am of the firm view that Mr Karim is continuing to place himself at high risk of further damage to his back as he continues to care for and inevitably has to lift and physically support his wife daily. There is also a high risk of [him] having an accident whilst undertaking any of these tasks with a consequent risk of injury to his elderly wife. There is a further risk of [him] being unable to evacuate the flat safely with his wife, in the event of a fire. …
Additionally the sense of isolation and stress that Mr Karim and his wife Mrs Khana as well as their daughter M/s Kazal experiences at the present can only continue to have a detrimental impact on their emotional and mental health as well as their physical well-being."
"Mrs Khana would be best helped by being re-housed in the community, in more suitable accommodation, with Social Services support. This would provide an immediate gain of being returned to the world, albeit an English world and not Turkish. By removing her isolation which is dependent on living in a second floor flat her mental health should improve and the burden of care should diminish."
Southwark's second decision
"If Mr Karim and Mrs Khana absolutely refuse the provision of a residential care home the Local Authority could provide some practical home care assistance (but as previously explained the home carers would not be Kurdish speaking) although it considers that this is not an appropriate response as it would not provide the care and level of support that Mrs Khana needs; it is the view of the Local Authority that only residential care can provide this."
The proceedings below and further developments
"highly likely to lead to a swift deterioration in her mental health. The familiarity of her routine and regular contact with her extended family I would deem to be quite crucial in helping her to maintain equilibrium in her mental state. The disorientation and sense of loss to be experienced on entering residential setting might well greatly destabilise her overall".
"I would have considered that the sort of housing being offered by [Southwark] for Mrs Khana would be an ideal compromise.
The priority for Mrs Khana is to receive some form of residential care in a situation that she is not isolated from her family or other members of her community. Isolation would make her mental state worse. If her husband was able to live with her in residential care this would get around both problems, provide her with care with her immediate family, ie husband with her. …. Her family could visit as much as they wish and her husband would have much more support than would be available in elderly housing."
"I cannot fully concur with all their recommendations. Access with wheelchairs, Kurdish support, Kurdish food can all be provided in residential care."
"20. In my opinion it is in Mrs Khana's best interests to remain residing with her husband and daughter. There are three main reasons for this: first it should mean that she would receive personal care and social stimulation from people whom she trusts – namely her closest family members; second; she would receive culturally appropriate stimulation – and Southwark Council have not been able to identify a Kurdish speaking home care worker to support her; third, the risk of serious deterioration in her mental illness would be very high if she were separated from her husband.
21.It would be in Mrs Khana's best interests to live in ground-floor accommodation with wheel-chair access. At present she is flat-bound and quite apart from the direct benefit to her of access to fresh air it would assist her husband who appeared …. to be showing evidence of clinical depression – caused at least in part by his unwillingness to leave his wife alone in the flat for fear of a fall.
22. I think it would be in Mrs Khana's best interests to receive some professional help with personal care to supplement the existing input from her husband and other family members. In my experience it can be very stressful on individual carers supporting a person with high physical and psychological dependency (like Mrs Khana) without respite ….
23. While I welcome Southwark Council's offer to accommodate Mrs Khana and her husband in the same location, there are serious weaknesses in proposal to place them in a residential home for older people. Southwark does not appear to have access to a home with other Kurdish residents and their proposal would mean that both husband and wife would be socially and linguistically isolated. In addition, other family members are likely to find themselves subject to criticism from the Kurdish community for letting their elderly relatives be moved to "an institution" outside the Kurdish culture. Although I have no clear picture of the precise difficulties faced by the couple's younger daughter with whom the couple are living, I gained the impression that all three of them would wish her to live with them in future – provided that the living accommodation was suitable. I was told that it would be unacceptable for a single Muslim woman from their culture to live alone in London."
He repeated that a two bedroom ground floor flat would be "the ideal arrangement", adding:
"24. ….. In addition I would strongly recommend provision of home-care assistance for Mrs Khana so not all personal care tasks are undertaken by husband and daughter. The frequency could be adjusted according to need.
25. If it was not possible to accommodate Mrs Khana with her daughter, an alternative would be a sheltered housing flat for the couple or an enhanced sheltered housing flat in specialised accommodation. Here it should be possible to provide personal care input (by home care staff) to assist Mrs Khana with tasks such as washing, dressing and toileting in a culturally sensitive way."
Finally, he said:
"27. It is normal social policy in the care of older people with complex care needs in our society to provide extra support for people in a safe physical environment without transfer to 24 hour staffed accommodation (residential or nursing home) unless absolutely essential. In this case, in my view, the alternative to residential care should be tried first, as recommended as part of normal social practice."
"12. …. However, as choice remains an important element of assessment and care planning, if a client or family do not wish to leave their own home we would negotiate a care package at home. This however would not be 24 hour care and therefore some degree of risk is involved in such a care package. In this situation we would share our concerns with the family and attempt to minimise the risks.
13. I do not see how the provision of two bedded accommodation will provide for her needs for personal/practical help or substantially alter her social/cultural environment. Having taken into account Dr Jefferys' report the Defendant's decision is still to offer Mrs Khana and Mr Karim accommodation in a residential home.
14. A practical care package of one and a half hours each morning was provided for a short period of time. The carer had attempted to learn a few words of Kurdish. However, the family refused the continued provision of care on 31 October 2000."
The applicable statutory scheme and principles
"21.-(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State and to such extent as he may direct shall, make arrangements for providing-
(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them …."
"A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons …. who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons …. who are substantially and permanently handicapped by illness, or congenital deformity or such other disabilities as may be prescribed by the Minister".
"47.-(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community 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."
"Once the assessment has been made then resources may well be relevant to the manner in which provision is made to meet the need. Take the facts of these appeals. Mrs Ingham's needs were identified as being '24 hour care'. Lancashire Borough Council's duty was to meet that need. They could do so either by making arrangements for her to go into a residential home or by providing 24 hour care in her own home. In making that decision they are entitled to take into account the alternative costs. …."
"The …. reality is that the resources of the local authority are finite and that, in providing accommodation for the needy, save in rare cases where individual or special accommodation may be necessary and available to meet the special needs of a particular applicant, the accommodation may, and will usually be, provided within multi-occupied premises, whether in the form of flats, or hostel or bed and breakfast accommodation, in relation to which it will be reasonable for the local authority to lay down certain requirements as to the use of such accommodation and the activities to be permitted in it …."
"That will remain the position unless or until, upon some subsequent application, the applicant can satisfy the local authority that his needs remain such as to justify provision of Pt III accommodation and that there is no longer reason to think that he will persist in his refusal to observe the reasonable requirements of the local authority in respect of the provision of such accommodation."
The submissions regarding application of the statutory scheme and principles
"may not treat itself as having discharged its duty to make community care provision for the applicants solely by offering them a place in a residential care home. If the applicants reasonably refuse such a service the respondent is under a continuing duty to make community care provision for them, although it is unable to do so by its preferred method."
" 'Normal' housing can be provided by this subsection when it is the answer to a need which would otherwise have to be met by other community care services."
"A respect for the independence of individuals and their right to self-determination and to take risks, minimising any restraint upon that freedom of action.
An understanding of the dignity and individuality of every user and carer.
A quest within the available resources, to maximise individual choice in the type of services on offer and the way in which those services are delivered."
MR JUSTICE MCKINNON: I agree.
LORD JUSTICE HENRY: I also agree.