QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of : B
|- and -
|CALDERDALE METROPOLITAN BOROUGH COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Gerry Facenna (instructed by Mr G J Norrie, Chief Law and Administration Officer, Calderdale MBC) for the Defendant
Crown Copyright ©
Mr Justice Stanley Burnton :
The statutory provisions
"1. (1) Grants are available from local housing authorities in accordance with this Chapter towards the cost of works required for—
(a) the improvement or repair of dwellings, houses in multiple occupation or the common parts of buildings containing one or more flats,
(b) the provision of dwellings or houses in multiple occupation by the conversion of a house or other building, and
(c) the provision of facilities for disabled persons in dwellings and in the common parts of buildings containing one or more flats.
(4) A grant for the provision of facilities for a disabled person—
(a) in a dwelling, or
(b) in the common parts of a building containing one or more flats,
is referred to as a 'disabled facilities grant'."
"23. (1) The purposes for which an application for a disabled facilities grant must be approved, subject to the provisions of this Chapter, are the following—
(a) facilitating access by the disabled occupant to and from the dwelling or the building in which the dwelling or, as the case may be, flat is situated;
(b) making the dwelling or building safe for the disabled occupant and other persons residing with him;
(c) facilitating access by the disabled occupant to a room used or usable as the principal family room;
(d) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room used or usable for sleeping;
(e) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a lavatory, or facilitating the use by the disabled occupant of such a facility;
(f) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a bath or shower (or both), or facilitating the use by the disabled occupant of such a facility;
(g) facilitating access by the disabled occupant to, or providing for the disabled occupant, a room in which there is a washhand basin, or facilitating the use by the disabled occupant of such a facility;
(h) facilitating the preparation and cooking of food by the disabled occupant;
(i) improving any heating system in the dwelling to meet the needs of the disabled occupant or, if there is no existing heating system in the dwelling or any such system is unsuitable for use by the disabled occupant, providing a heating system suitable to meet his needs;
(j) facilitating the use by the disabled occupant of a source of power, light or heat by altering the position of one or more means of access to or control of that source or by providing additional means of control;
(k) facilitating access and movement by the disabled occupant around the dwelling in order to enable him to care for a person who is normally resident in the dwelling and is in need of such care;
(l) such other purposes as may be specified by order of the Secretary of State.
(2) An application for a disabled facilities grant may be approved, subject to the provisions of this Chapter, for the purpose of making the dwelling or building suitable for the accommodation, welfare or employment of the disabled occupant in any other respect.
24. (1) The local housing authority—
(a) shall approve an application for a disabled facilities grant for purposes within section 23(1), and
(b) may if they think fit approve an application for a disabled facilities grant not for a purpose within that provision but for the purpose specified in section 23(2),
subject to the following provisions.
(3) A local housing authority shall not approve an application for a disabled facilities grant unless they are satisfied—
(a) that the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and
(b) that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling or building.
In considering the matters mentioned in paragraph (a) a local housing authority that is not itself a social services authority shall consult the social services authority."
"The relevant works" are the works in respect of which the grant is sought: section 2(2)(a) of the Act.
"Making a dwelling or building safe
17. Section 23(1)(b) is a new provision enabling grant to be given for certain works to the dwelling or building to make it safe for the disabled person and other persons residing with him. This may be the provision of lighting where safety is an issue or for adaptations designed to minimise the risk of danger where a disabled person has behavioural problems which cause him to act occasionally or regularly in a boisterous or violent manner damaging the house, himself and perhaps other people. Where such need has been identified, grant is available to carry out appropriate adaptations to eliminate or minimise that risk.
18. For those with hearing difficulties, an enhanced alarm system, which may be required in the dwelling to provide improved safety for the disabled occupant in connection with the use of cooking facilities or works to provide means of escape from fire could also qualify for mandatory grant under subsection (1)(b).
19. It would be inappropriate to be prescriptive on the particular works covered under subsection (b) but they might include the provision of specialised lighting, toughened or shatterproof glass in certain parts of the dwelling to which the disabled person has normal access or the installation of guards around certain facilities such as fires or radiators to prevent the disabled person harming himself. Sometimes reinforcement of floors, walls or ceilings may be needed, as may be cladding of exposed surfaces and corners to prevent self injury. The Community Learning Disability Team, local Challenging Behaviour Resource Team, or RNIB may be able to advise. In these cases it will be for housing and social services authorities between them to decide on the most appropriate adaptations to be provided."
"Ever since (SB) moved into (DB's) room in June 1997 we have had problems with (DB) being violent towards him. This violence has increased, becoming much worse over the past 18 months or more. He also hurts his sister, but not always as frequently. He hurts (SB) on a daily basis. Some examples of his behaviour towards (SB) are: -
Jumps on him, slams drawers shut whilst (SB's) hands are in them, trips him up, falls on him deliberately, hits and kicks him, swings him by his arms into bedroom furniture, swings him round by his legs (usually banging his head into furniture), breaks his toys, heated a magnet on his radiator and burnt (SB's) cheek with it, picks him up and drops him, shoves him into furniture, throws toys at him (including large toys), lifts him into air and slams him onto floor (thinks it's okay because it's a wrestling move), knocks him down then jumps on him – and elbows him in chest or stomach (also a wrestling move), stamps hard on his fingers and toes.
At night (DB) is usually awake until past midnight and deliberately wakes (SB) up every night. He gets out of bed, stands next to (SB) and yells in his ear!, throws toys at him and on to his bed, pulls his quilt off, hangs down from his top bunk and grabs him, rock his bed as hard as he can whilst in it (he has already broken one set of bunk beds which were bought in June 1997). He frightens (SB) by talking about ghosts/monsters without heads etc! He also wakes (SB) (and the rest of us up) each morning, sometimes as early as 5:00am.
(SB) in no longer allowed to play in the room at the same time as (DB) and we feel the need for an extra room to ensure his well being. Our 13 month old son has recently started climbing out of his cot and will also need to share the bedroom with (DB) and (SB), but we fear for his safety – we do not allow him to be left in the same room alone with (DB) even for a moment."
"1) (DB's) behavioural problems / violence and to ensure (SB's) safety.
2) So that (DB) had a room of his own large enough for a single bed at ground level, a wardrobe, drawers and desks. The bed at ground level is necessary as he often falls from his top bunk and has difficulty using the bunk bed ladder because of his lack of spatial awareness. NB. It would also be dangerous for (SB) to use the top bunk as he suffers from night terrors (a sleep disorder)."
However, the letter again referred to the grant being required for the purpose of "providing the disabled occupant a room used or usable for sleeping", and, despite the fact that the Bs' had considered the provisions of section 23(1), did not refer to paragraph (b).
"(DB) will keep (SB) awake by prodding, hitting and shouting in his ears. At present, the family are attempting to manage this by allowing (SB) to fall asleep in his parents' bed and then carrying him through to his own bed after (DB) has fallen asleep. In the early hours (SB) has been encouraged to go downstairs away from (DB). (SB) is now being seen by GP for night terrors and has developed Eczema. There may be some question about being these being stress related. …
(DB) also likes to be on his own and prefers his own space. … If (DB's) 'collections', routines or ability to be alone is disturbed he will self-harm. This is usually by hitting himself with his fist or banging his head on a wall. (DB) appears to have little awareness of action / consequence and does not seem to be able to understand the effect his actions have on others either physically or, more importantly, emotionally. He seems unsure how to react to situations and often this will be inappropriate."
"To enable the family to manage (DB's) needs and those of their other children (DB) does need to have his own space where he can feel safe and be safe. (DB) having a bedroom of his own would achieve this. (DB) would be able to use this room when he needed and would alleviate some of the behaviour problems that are now encountered. (DB) needs to be able to have this space so that the characteristics of Aspergers Syndrome can be managed more effectively. This would be beneficial for the whole family unit and would help to prevent breakdown of care.
This request is not an overcrowding issue as there would be no problem with the family occupying this house if (DB) did not have Aspergers Syndrome. The family would put all three boys in one bedroom and their daughter in another if that were possible."
"a) Is (DB) or (are) other occupants of the house unsafe due to the lack of an additional bedroom?
b) Would provision of an additional bedroom make them safe?"
Mr Sheehan accepted that an additional bedroom would be helpful to the family, but disputed whether this fell within the legislation. He stated:
"There are a number of factors to consider having regard to the independent Occupational Therapist's assessment.
(i) (DB) disturbs not only his brother (SB) who is in the same bedroom but indeed the rest of the household who already have other bedrooms.
(ii) (DB) has symptoms associated with Aspergers Syndrome, a variety of autism. It is proposed that he has little understanding of his actions or their consequences. This would appear to suggest that his problems are much more profound than his sleeping environment per se.
(iii) The family make reference to difficulties at school again suggesting wide ranging difficulties in a variety of environments.
(iv) (DB) has recently reportedly attacked his brother outside the home causing injuries requiring hospital attention.
All of this suggests that there are a complex series of issues connected with (DB) and his behaviour in a variety of environments. This has to be set alongside the requirements to consider what is necessary and appropriate. The current view of the Authority is that provision of extra sleeping room to allow (DB) to have his own room would probably be helpful in managing (DB's) condition. However the Authority is no currently convinced that this falls into the mandatory category where the Authority is required to undertake grant work. This is because the evidence available primarily relates to (DB's) general behaviour and condition rather than the physical layout of the accommodation or the number of bedrooms they are in.
In addition the evidence for the nature, extent and seriousness of (DB's) condition is not clear-cut. …"
Mr Sheehan continued:
"The Local Authority would maintain that the issues raised by this case are difficult to distinguish from those raised by quite a number of similar cases which would reasonably be defined as overcrowding.
Not wishing to appear insensitive it is fact to say that there are many families in the Borough where children share bedrooms a number of which are known to have behavioural issues facing them and where an additional bedroom would no doubt fit the families concerned. …"
"It is the Authority's view that this is also not an appropriate option because there is no clear case for mandatory grant."
i) That the grant was required to facilitate access by the disabled occupant, namely DB to, or providing for the disabled occupant, a room used or usable for sleeping.
ii) That DB's problems are much more profound than his sleeping environment.
iii) That DB has difficulties at school.
iv) That DB has recently attacked his brother outside the home causing injuries requiring hospital attention.
v) That in 1999, 2¼ years before the Respondents' decision letter the Occupational Therapist had concluded there was no good case recommending a grant.
vi) That in January 2000, 2 years before the Respondents' decision, the Community Nurse noted an improvement in regard to DB's attitude and behaviour at school and outside the family environment.
In addition, it is alleged:
vii) that Calderdale failed to take into account a relevant matter, namely the guidance given in Circular 17/96 in relation to paragraph (b) of section 23(1); and
viii) "that in all the circumstances the decision was Wednesbury unreasonable".
"(The letter relies) heavily on the fact that interpretation by other agencies has tended to indicate that (DB's) behaviour is controllable. What this in practice means in my experience is that, because he has high functioning autistic spectrum disorder, (DB) is able to sustain socially acceptable behaviour in many aspects of his life for some period of time. The fact of the matter, however, is that (DB's) difficulties have led to a great deal of self injury and injury to his siblings. As parents my wife and I have had many sleepless nights either trying to supervise (DB) or placate and calm our other children on account of (DB's) difficulties."
"Self injurious – punches himself and bangs head on wall /doors when upset or angry, bites himself when he is reading (says it feels comfortable), scratches his arms and or his cheeks when he is excited 'because it feels nice'!
Violent towards his siblings."
Dr Upadhyaya confirmed that DB was suffering from Autism / Aspergers Syndrome. His recommendations made no mention of his need for his own bedroom.
"6. … The view of the Authority is that provision of an extra sleeping room to allow (DB) to have his own room might be helpful in managing (DB's) condition. However, the Authority is convinced that (DB's) case does not fall into the mandatory category where the Authority is required to undertake grant work. This is because, on the facts, while there may be safety issues connected with (DB's) behaviour, evidence is contradictory and there is no compelling evidence that resolving this issue is fundamentally linked to the provision of an additional bedroom. In fact all the evidence suggests that (DB) has a general behaviour problem which is not particularly related to the physical layout of his accommodation or the number of bedrooms therein.
7. In addition, the evidence for the nature, extent and seriousness of (DB's) condition is not clear-cut. All of the initial reports at the end of 1999 and in the spring of 2000 indicated that (DB's) condition was less serious than is now currently suggested by the B family. School reports and school visits at the time of the family's initial application in the winter of 1999 / 2000 suggested that (DB) was making good progress at school and that his achievement was average for his age. The Occupational Therapist's visit of December 1999 concluded that there was no good case for recommending a Disabled Facilities Grant and in the same month he was discharged by the Senior Paediatric Occupational Therapist on account of the good progress he was making across a range of skills. A report from a community nurse employed by the Intensive Support Team in January 2000 also noted very positive findings with regard to (DB's) attitude and behaviour at school and outside the family environment. However, the same report raised issues connected with the need for increased positive interaction at home particularly with the then arrival of a new baby."
"The Authority (Calderdale) is very clear that there is no case for a mandatory Disabled Facility Grant in this instance."
"4. Mr and Mrs (B) also told me that (DB) was aggressive towards his brother and was unable to share a bedroom. They said that his behaviour was such that he is prevented from playing in the same room as his siblings. Mr and Mrs (B) said (DB) had no safety awareness and was unable to understand the consequences of his actions. On a visit to school, staff did not report that (DB) displayed aggressive behaviour. Indeed they said that he was a good student who occasionally shouted out silly things to gain attention. He was observed in the classroom and play ground by me, interacting and playing appropriately with his peers. This indicates to me, that (DB) has the ability to control his behaviour and that he has the ability to learn to be safe, in the right environment, with the right guidance and he does understand the consequences of his actions.
6. The Authority also needs to be satisfied that the work is necessary and appropriate. Whilst providing the family with an extra bedroom would undoubtedly ease the problem of lack of space, it would not resolve (DB's) behavioural problems; Mrs (B) told me that (DB) is aggressive towards other family members, in areas other than the bedroom.
7. The evidence about the nature and severity of (DB's) disability is contradictory. On initial assessment, advice was sought from the Paediatric Occupational Therapist who treated (DB) for Dyspraxia. She discharged him from their services as standardised tests showed he had made significant improvements and was functioning within an acceptable level. Advice was also sought from The Intensive Support Teams Nurse who felt that more positive interaction at home and advice from the Child And Family Mental Health Team would be a more appropriate route in dealing with him, rather than an adaptation, which would not address the route [sic] cause of (DB's) problems.
8. Challenging behaviour is not necessarily always associated with Aspergers and Autism. It can often be a display of frustration or a method of communication."
"Although … adaptations may improve the safety of those residing with the disabled person because such people are protected from the possible effects of the disabled person's aggressive behaviour, it cannot have been Parliament's intention that s. 23(1)(b) should oblige a local authority to give a disabled facilities grant for works aimed primarily at protecting someone other than the disabled person."
- - - - - - - - - - - - - - - - - - - - -
MR STANLEY BURNTON: My judgment has been distributed in draft. Copies of the judgment as approved for handing down are available. For the reasons set out in it, I have decided that the claim ought to be dismissed.
MISS MISKIN: My Lord, I have an application for permission to appeal. I hope I can express it shortly. It really turns on your Lordship's interpretation of the phrase "making the house safe". Your Lordship has found that "safe" does not mean "safer". Your Lordship has also gone on to find that the local authority took into account the Code of Guidance because it was appended to their decision letter. My Lord, what I would say quite simply is this: if one looks at the Code of Guidance it is quite obvious that what it envisages is adaptations which assist in making safe those with behavioural disorders, and it would be a strange situation, in my submission, if these adaptations could only be made, or grants for them could only be granted, if it was completely going to resolve that particular person's problems which is the interpretation that your Lordship has put on it.
MR STANLEY BURNTON: I seem to remember I said "safe" is a relative concept.
MISS MISKIN: Yes, but your Lordship has expressed it as saying that there is always some element of risk, but safe does not mean safer. My Lord, if I can shortly point out --
MR STANLEY BURNTON: You do not have to. I remember roughly what I said. Those are the two points are they?
MISS MISKIN: There is just this point which I would like to make which is this: the Code of Guidance refers to minimising and, therefore, that would seem to be inconsistent with your Lordship's finding that the local authority had actually taken it into account because of course they are anxious to point out that the adaptation would not resolve the problems and of course that is not what the Code says. My Lord, that is all I have to say.
MR FACENNA: My Lord, it is entirely a matter for your Lordship. In our view, there is no really point of law here. Your Lordship has found that the criteria in the statue are narrow and defined, and that as a matter of fact this application does not fall within them. As to my learned friend's second point on the Code of Guidance, your Lordship has also found as a matter of fact that the Council did refer to the ministerial guidance and was not simply just appended, it was actually referred to in the letter. So in our submission, the application should be rejected. There is no application as to costs.
MR STANLEY BURNTON: It seems to me that this case does raise issues as to the construction of the Act and I shall give leave. Is the claimant legally assisted?
MISS MISKIN: Yes, I am, my Lord. I gather there is no application for costs so would your Lordship please order a detailed assessment?
MR STANLEY BURNTON: So be it. Thank you.