QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KENNY HUGHES||(CLAIMANT)|
|LIVERPOOL CITY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR I WISE (instructed by Lees & Partners) appeared on behalf of the CLAIMANT
MR H HARROP-GRIFFITHS (instructed by Liverpool Legal Department) appeared on behalf of the DEFENDANT
Crown Copyright ©
Wednesday, 16th February 2005
MR JUSTICE MITTING: The claimant was born on 6th April 1985. He therefore reached his 18th birthday on 6th April 2003. He has severe mental and physical disabilities. They are summarised in his mother's witness statement of 7th August 2004 in paragraph 4 as follows:
"Cerebral palsy; severe learning difficulties; poorly controlled epilepsy; an extremely erratic sleep pattern; Ataxia with poor co-ordination and fluctuating muscle tone with stiffness on the right side of the body; decreasing mobility over the last 4 years or so; double incontinence; no speech."
He has been looked after by his mother since birth with some help from outside agencies. He lives with his mother at 18 Cadogan Street, Liverpool 15 in a 3 bedroom semi-detached house which is and has been for some time acknowledged to be unsuitable for his needs. His mother on his behalf has sought assistance from Liverpool City Council to assess his needs for accommodation and welfare services. She claims that Liverpool's response has been so inadequate as to be unlawful and/or has put the authority in breach of its statutory duties owed to him which on his behalf she can seek to have enforced by judicial review.
The statutory scheme is complex and is to be found in several different statutes and ministerial directions. The claim is founded on Part 3 of the National Assistance Act 1948. Until counsel for Liverpool responded, there was no suggestion that it should be dealt with under any other provision, but Mr Harrop-Griffiths has submitted that as to accommodation needs, Part 3 is not engaged at all. The duty, he says, if any, was owed under Part 7 of the Housing Act 1996 only. It is necessary therefore to set out all arguably relevant statutory and ministerial material.
Section 21(1)(a) of the National Assistance Act 1948 provides:
"(1) [Subject to and in accordance with the provisions of this Part of the 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."
Subsection 8 provides:
" ... nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of the Act ... "
Local authority circular 93/10 provides in Appendix 1 paragraph 2(1):
"The Secretary of State hereby ...
"(b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof, to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention not otherwise available to them."
Several provisions of the Housing Act 1996 are argued to be relevant beginning with section 175(1) which provides:
"A person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere ..."
And subsection (3):
"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."
Section 189(1) provides:
"(1) The following have a priority need for accommodation -
"(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
"(b) a person with whom dependent children reside or might reasonably be expected to reside;
"(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expect to reside;
"(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
"(2) The Secretary of State may by order -
(a) specify further descriptions of persons as having a priority need for accommodation ...
Section 193 provides:
"(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally ...
"(2) Unless the authority refer the application to another local housing authority ... they shall secure that accommodation is available for occupation by the applicant."
As to welfare arrangements, the relevant provisions are not disputed but are more extensive. Section 29(1) of the 1948 Act provides:
"(1) 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 [aged eighteen or over] who are blind, deaf or dumb [or who suffer from a mental disorder of any description], and other persons [aged eighteen or over] who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
In appendix 2 to the same Local Authority Circular, 93/10 to which I have already referred, the Minister directed as follows:
"2(1) The Secretary of State hereby ... directs local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes:
"(a) to provide ... support as may be needed for people in their own homes ..."
Section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 provides:
"where a local authority having functions under s29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely -
"(a) the provision of practical assistance for that person in his home..."
Section 7(1) of the local authority Social Services act 1970 provides:
"(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
It is to be noted that subsection 7A also empowers the Secretary of State to give directions, a power that has not in fact been exercised in relation to the facts of this case.
Guidance is given by the Secretary of State under Local Authority Circular 13 of 2002. In the summary it is stated that the guidance applies from 7th April 2003, and that care plans of all cases open on 7th April 2003 should be reviewed and individual's needs reassessed by the beginning of April 2004.
The following paragraphs of the text of the guidance are relevant:
"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."
"15. Councils should use the following eligibility framework to specify their eligibility criteria. In other words, they should use the framework to describe those circumstances that make individuals, with the disabilities, impairments and difficulties as described in paragraph 14, eligible for help. The eligibility framework is based on the impact of needs on factors that are key to maintaining an individual's independence over time ...
"16. The eligibility framework is graded into four bands, which describe the seriousness of the risk to independence or other consequences if needs are not addressed."
They are critical, standard, moderate and low. Paragraph 18:
"18. In setting their eligibility criteria councils should take account of their resources, local expectations, and local costs ... "
"20 ... Eligibility criteria should be published in local 'Better Care, Higher Standards' charters, and made readily available and accessible to service users, the public more generally, and other relevant local bodies."
"43. Once eligible needs are identified, councils should meet them ... "
"47. If an individual is eligible for help then, together with the individual, councils should develop a care plan. The written record of the care plan should include as a minimum:
"a note of the eligible needs and associated risks.
"The preferred outcomes of service provision.
"Contingency plans to manage emergency changes.
"Details of services to be provided, and any charges the individual is assessed to pay, or if direct payments have been agreed.
"Contributions to which carers and others are willing and able to make.
"A review date."
"53. Councils should provide services promptly once they have agreed to do so, but where waiting is unavoidable they should ensure alternative services are in place to meet eligible needs".
As regards accommodation or housing needs, Mr Harrop-Griffiths submits that no duties are owed to the claimant under section 21 and Local Authority Circular 93/10 appendix 1, because Liverpool had authority to arrange for the provision of the accommodation under section 193(2) of the Housing Act 1996. He relies on dicta of Hale LJ in R (Wahid) v Tower Hamlets London Borough Council  reported in 2003, HLR 2 at page 13. In paragraph 34, Hale LJ said:
"Had it been that the combination of the claimant's mental health and a severe housing problem gave rise to a need for care and attention, this claim would still have faced considerable difficulties. He would have had to show that the care and attention he required was not otherwise available to him. He would also have had to surmount the hurdle presented by section 21(8). Nothing in section 21 allows, let alone requires, a local services authority to make any provision authorised or required to be made, whether by them or by any other authority, by or under any enactment other than Part III of the 1948 Act. The asylum seekers succeeded because there was no other power, let alone duty, to provide them with the care needed to sustain life and health. There is power to meet ordinary housing needs, either through the procedures for allocating social housing under Part VI of the Housing Act 1996 or through the provisions for assisting and accommodating the homeless under Part VII of that Act."
Mr Harrop-Griffiths submits that the reasoning in R v Kensington and Chelsea RLBC ex parte Kujtim  4 All ER 161, and R (Bernard) v Enfield LBC  EWHC 2282 (Admin) is explained by the fact that Kujtim was an asylum seeker and the Bernards were intentionally homeless, therefore the local authority were not authorised to make arrangements for their accommodation under other statutes. That is so as regards Kujtim but not as regards the Bernards, in respect of whom even if they were intentionally homeless the local authority had a duty to provide temporary accommodation under section 190(2)(a) of the Housing Act 1996 which provides:
"(2) If the authority are satisfied that the applicant has a priority need, they shall-
(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation ... "
And it does not explain R v Wigan MBC ex parte Tammadge, a decision of Forbes J on 30th July 1998, which was cited without disapproval in Kujtim at paragraph 24; or the reasoning of the Court of Appeal in R v Sefton MBC ex parte Help The Aged  4 All ER 532. The answer is to be found in a careful reading of Hale LJ's observations: where,
"There is power to meet ordinary housing needs"
section 21 is not engaged, even in the case of a person who is vulnerable by reason of mental illness or handicap or physical disability. But it is the ordinary housing needs of such a person which are the subject of section 189(1) of the 1996 Act. All that section 189(1) does is to identify those categories of persons who have a priority need for accommodation: a pregnant woman, a person with dependant children, a person who is homeless as a result of an emergency, as well as a person who is vulnerable as a result of old age, mental illness, handicap or physical disability. It is not directed to cases in which a person has a requirement for specially adapted accommodation: for example accommodation with wheelchair access, with no steps, and with washing and changing facilities for those who cannot care for themselves. Such persons do not only have a priority need for accommodation, they have a need for accommodation adapted to the demands created by their disabilities.
Part 7 of the Housing Act 1996 does not authorise the local authority to provide such accommodation, even to those in priority need. The authority for the provision of such accommodation must be sought elsewhere. It is to be found in section 21 of the 1948 Act. Once the duty is established, it must be fulfilled, see ex parte Help the Aged. The duty can be enforced by judicial review; see Kujtim at pages 174J to 175A. Liverpool accept and have accepted since before the claimant achieved his majority on 6th April 2003 that his current accommodation is not suited to his needs.
In a letter dated 30th December 2002, Ms Leann McDonough, a social worker employed by Liverpool, wrote to the Guinness Trust as follows:
"The family are at present living in a property that is totally unsuitable to meet Kenny's needs. Kenny is carried up and down stairs each day which puts the family/carers and Kenny at risk. The family require a ground floor accommodation with level access shower."
In a document addressed "To Whom it May Concern" dated 18th June 2003, Miss Jackie O'Caroll, Service Manager employed by Liverpool wrote:
"Kenny is now 18 but the housing issues have remained unaddressed for a number of years. It has now become a crisis situation ... "
A detailed assessment was made in January 2004. In it, the following observations were made about the claimant's housing needs in sections 6 and 7:
"Kenny lives at home with his mother, they live in a three-bedroomed council property that is totally unsuitable for Kenny's needs. Kenny currently sleeps in his own bedroom, a mechanical orthopaedic bed has been provided which helps both Kenny, his mother and his carers as they are able to higher or lower the bed to suitable heights when attending to Kenny.
"Statement of Accommodation Needs:
"Kenny and his mother require a ground floor level home with an accessible shower. The O/T [occupational therapy] report on file clearly outlines the issues of inaccessibility within this present accommodation. It has been assessed that Kenny is unable to have a stairlift fitted due to the narrow constraints of the stairways. Kenny is also unable to have a hoist fitted in the bathroom as again this is very narrow. There is a step both into the front of the house and out to the back of the house which Kenny could not attempt to manage.
"Statement of accessibility/mobility needs:
"As Kenny mainly uses a wheelchair for mobility, there are major problems with access into the accommodation.
A stair climber has been provided to get Kenny up and down the stairs, his mother feels it is inappropriate and cumbersome and that due to her having problems with lower back pains and problems with her knees, the transporting of Kenny has exacerbated her condition."
Those observations are repeated in the witness statement of Laura Duffy, the Operational Manager for the Learning Disabilities Team South employed by Liverpool, who in paragraph 9 says:
"The present property is a semi-detached house, it has three upstairs bedrooms and two rooms downstairs comprising of a kitchen and living room. All toilet and bathing facilities are situated upstairs. The bathroom has been assessed as being too small to house a hoist to be able to safely transfer Kenny into the bath. Further assessments have been carried out by the occupational therapy staff in relation to mobilising Kenny up and down the stairs, a chair lift has been ruled out of the question as it was not deemed to be safe due to Kenny potentially suffering seizure during transit. A stair climber has been provided to help in the transporting of Kenny, although this has caused problems for his mother becoming anxious when using the chair and also suffering further back pain due to the procedures involved. I understand that this property was originally assessed as being suitable for adaptation by a member of the childrens occupational therapy team, however, due to its construction and boundary lines, adaptation under the disabled facilities grant is not feasible."
She went on to note that rehousing had been recommended, and indeed that efforts had been made pursuant to that recommendation to find alternative accommodation.
I am satisfied that honest but unavailing attempts have been made to find alternative accommodation. They have been rejected by the claimant's mother, Mrs Hughes, without disapproval by Liverpool, as being unsuited to the claimant's needs. I need not rehearse the detail of each such attempt, but I refer to one which is independently verified as an example of what has occurred. In a witness statement dated 23rd July 2004, Trevor Tratter, an occupational therapist employed by Merseycare Trust, says that he went with the claimant's mother to visit a property offered by Liverpool at Pavilion Close, Liverpool 8 on 14th July 2004. He says in paragraphs 6 and 7:
"I attended with Shirley and a female Housing Officer from Liverpool City Council, based at Wavertree Road, Liverpool.
"After looking around the property, I asked the Housing Officer why she was showing us this property given Kenny's disabilities. The Housing Officer was surprised to learn of Kenny's needs and agreed that the property should not have been offered to Shirley. The Housing Officer said that a disabled facilities grant may be obtained for adaptations, however, I doubt whether this property could cope with the necessary [adaptations]."
More recently there are grounds for hoping that Liverpool's duty will be fulfilled. A ground floor flat in a building in the course of construction at Olive Mount for Cosmopolitan Housing Association has been identified by Liverpool as likely to be suitable for the claimant. Liverpool have said that they will nominate the claimant and him alone as a prospective tenant. A meeting at which the suitability of the accommodation can be assessed has been fixed for 24th February 2005. The dimensions of the flat have been supplied to the claimant's mother. They appear to be likely to be sufficient, but the layout and the adaptation needs have not yet been assessed. That is due to be completed in August 2005. If it proves to be suitable, Liverpool's duty under section 21 will, from the moment that the claimant is allowed into occupation, thereby be discharged. But it will be discharged very late in the day. The duty has been owed to the claimant under section 21 since 6th April 2003. It will not be discharged at the earliest until August 2005. It should have been discharged long before, as Ms O'Caroll recognised in June 2003. By failing to remedy what she identified as "a crisis situation" before now, Liverpool, despite their honest efforts, have in fact been in breach of the duty today owed to the claimant under section 21, and I so declare.
I do not consider it expedient to make a further order for the future pending the outcome of the assessment on 24th February 2005. I sincerely hope that all goes well. If it does not, Liverpool will remain under the duty which I have identified, and I give liberty to the claimant to apply to me, or if I am unavailable, to another judge of the Administrative Court, for further relief.
I now turn to welfare services. Mr Harrop-Griffiths submits that no decision of the courts has yet been made under section 29 of the 1948 Act to like effect as ex parte Help the Aged and Kujtim under section 21. That may be so, but there is in my judgment no difference of principle or practice between the approach that the court should adopt to the two sections. Section 2 of the Chronically Sick and Disabled Person's Act 1970 imposes on the local authority a duty to make arrangements for the provision of practical assistance in the home in the exercise of its functions under section 29. Section 29 imposes a duty to make arrangements for promoting the welfare of relevant persons to such an extent as the Secretary of State may direct. He has so directed in local authority circular 93/10 appendix 2 to provide "such support as may be needed for people in their own home". Section 7 of the Local Authority Social Services Act 1970 provides that the Secretary of State may give guidance to local authorities in the exercise of their functions under section 29. Liverpool accept that they are obliged to follow the guidance of the Secretary of State in making those arrangements. The Secretary of State's Guidance provide that they should identify eligible needs and meet them; see paragraphs 3 and 43 of the Guidance.
Resources, which are relevant to the setting of eligibility criteria, see paragraph 18, are not relevant in meeting identified eligible needs. The assessment of January 2004 has identified the claimant's eligible needs. First of all and extensively, in tabular form in section 8, I direct that a copy of that table is annexed to any transcript of this judgment so as to avoid having to set it out extensively and perhaps incomprehensibly in the text.
As regards self care, the assessment states:
"Kenny is unable to see to any of his own self care needs, he has very poor co-ordination and is doubly incontinent, he wears incontinence pads at all times. Kenny often wears a helmet due to his lack of balance and co-ordination.
"Kenny needs constant assistance with all aspects of his self care needs.
"Kenny has a very erratic sleep pattern and can more often than not be up most of the night.
"Kenny needs help both in going to bed and getting up in the morning.
"Due to his poor co-ordination Kenny is very unsteady on his feet and requires the help of two people to mobilise himself.
"Kenny requires help in dressing and undressing himself.
"He cannot see to any of his own toileting needs and wears incontinence pads at all times.
"Kenny is unable to contemplate climbing any stairs whatsoever, he frequently uses a wheelchair to aid his mobility. A stair-climber has been provided to help in getting Kenny up and down the stairs, however, this has proved problematic for his mother as she suffers from lower back pain. A stair-lift was refused due to health and safety reasons, as it was felt that this would be a danger to Kenny should he suffer an epileptic fit whilst is motion."
The report goes on to describe his difficulties with eating. In dealing with the provision made for him as at January 2004, the assessment states:
"At present Kenny has four nights of support on Thursdays, Saturdays, Sundays and Mondays. This is a short term measure until his respite/short breaks starts with PSS."
That is an agency that provides respite care.
"When this starts, Shirley states that she will no longer need this support."
It goes on to record that he attends a day services centre on normal weekdays.
Section 11 of the assessment sets out in tabular form the days and times on which support in the house is provided: Monday, Thursday, Saturday and Sunday nights from 6.00 pm to 8.00 pm, and day support on Saturdays from 2.00 pm to 10.00 pm. Under the heading, "Respite Arrangements", the following is stated:
"There is a set of agreed respite to cover every weekend from Friday night until Monday morning, however we are presently awaiting identification of appropriate carers from the Personal Services Society (PSS) (agency)."
Towards the end of the assessment, there is set out again in tabular form under the headings, "Identified Needs", "Objectives to be Achieved and How", and "Service to be Provided by", a statement in general terms of what the assessing team thought was needed. For present purposes, only two of their assessments are relevant. Under "Identified Needs":
"Kenny requires help with all aspects of his personal care."
"To maintain and encourage his personal hygiene and appearance and to ensure that he is appropriately clothed for the changing climate."
And under, "Service to be Provided":
Under "Identified Needs":
"Kenny needs help in preparing meals and in doing all household chores."
"To help Kenny live a near trouble free life as possible."
Under "Service to be Provided":
Mr Harrop-Griffiths submitted that that table from which I have cited the relevant extracts is the only assessment of the claimant's eligible needs made by Liverpool. If so, the assessment was manifestly inadequate because for example it does not deal with his mobility and night-time care. I do not believe that Liverpool Social Services have so failed in their duty as to overlook obvious factors in their assessment. I treat the whole document as their assessment of his eligible needs, including the passages I have cited and the table to which I have referred.
I am untroubled by the lack of priority accorded to each identified need, but I am concerned that despite the identification of a need for weekend respite care, none has been provided, save for a two week holiday in August 2004. It should be soon. Further, the deterioration in Mrs Hughe's physical condition referred to in the assessment and her increasing difficulty in manhandling the claimant in my view requires reassessment soon. That is required under the Secretary of State's Guidance in Local Authority Circular 13 of 2002, paragraph 60, which provides:
"There should be an initial review within three months of help first being provided for major changes made to current services. Thereafter reviews should be scheduled at least annually or more often if individual circumstances appear to warrant it."
The need is particularly urgent while the claimant continues to be accommodated in a manifestly unsuitable property. I therefore propose to order Liverpool to provide respite care each weekend within a short time frame and to conduct the further assessment required by paragraph 60 to which I have referred.
I now turn to the claim for damages made by the claimant under section 8 of the Human Rights Act. The claim is said to be for infringement of his rights under article 8 of the European Convention of Human Rights. Article 8 provides:
"Right to respect the private and family life.
"(1). Everyone has the right to respect for his private and family life, his home and his correspondence.
"(2). There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Section 8 of the 1998 Act provides:
"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
"(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
"(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-
"(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
"(b) the consequences of any decision (of that or any other court) in respect of that act,
"the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
"(4) In determining-
"(a) whether to award damages, or
"(b) the amount of an award,
"the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."
Accepting, without deciding, that Article 6 imposed on Liverpool a positive duty to promote the claimant's private and family life, I am not satisfied that it has acted so as to be in breach of that right. The claimant's private and family life have been protected and promoted by the efforts principally of his mother, but supplemented by carers paid for by Liverpool. Subject to the limitations necessarily imposed upon the claimant by his disabilities, he has been able to enjoy his private and family life. It is true that his mother has identified respects in which protection of his dignity and personal integrity would be improved were suitable accommodation to be provided. But in all other respects, as far as I can tell from the documents that I have read and the submissions that have been made to me, the limitations imposed upon his enjoyment of private and family life stem from his own condition.
The burden imposed on his mother has been very great, even intolerable. But it is not she who is the claimant. As a result of her efforts, the impact upon the claimant's private and family life of Liverpool's shortcomings in fulfilment of its statutory duties has been reduced to a level at which his rights have not been infringed. In any event, I am not satisfied that the high threshold identified by Lord Woolf LCJ in R (Anufrijeva) v Southwark LBC  QB 1124 at paragraph 43 has been crossed. Nor do I think it is necessary to achieve just satisfaction of the claimant's claim that damages should be awarded. I refer to Lord Woolf's analysis of the circumstances in which damages may be awarded in paragraph 55 of that decision.
It is possible that in the future matters may be different if despite this judgment Liverpool do not fulfil its duties under sections 21 and 29 of the 1948 Act so that the claimant's rights under Article 8 become infringed. This may well be so if for example his mother is unable to continue to provide the care that she does owing to her own difficulties, and her efforts are not adequately substituted by Liverpool. But that is a matter for the future if and when it arises.
For those reasons, the application for judicial review succeeds to the extent that I have indicated. The claim for damages for breach of Article 8 fails. I will hear counsel on the detail of any consequential orders.
MR WISE: My Lord, I am much obliged for that judgment. With regards to the declaration, in our submission the terms of your Lordship's judgment is sufficient in any event, and that is set out there. With regards to the second issue, the welfare provision issue, your Lordship has said that it is particularly urgent that respite care is provided as soon as possible, and also your Lordship orders that I think a reassessment of the claimant's needs be made. Those orders are particularly welcome in this case, but we would seek to time limit the carrying out of those orders. The respite care clearly we would seek forthwith, but one recognises the potential practical difficulties, and inevitably it will take the local authority some short time to put in place the necessary arrangements. We would say 14 days would be adequate to put that in place.
MR JUSTICE MITTING: And the reassessment?
MR WISE: The reassessment, your Lordship may recall in opening that I suggested 14 days for a reassessment. The reassessment is not as urgent as the actual provision of the respite, of course, and one is anxious to not make the time for the assessment so tight as to hinder its utility. 14 to 21 days or thereabouts, my Lord, clearly one would listen to what the authority has to say about that, but your Lordship will appreciate we want it as soon as possible providing that the job is done properly. So either 14 or 21 days.
I think the detail of those two matters are the only other matters save for costs that I need to press your Lordship on.
MR JUSTICE MITTING: Well, let us leave costs to one side for the moment.
MR WISE: Of course.
MR JUSTICE MITTING: The order, Mr Harrop-Griffiths.
MR HARROP-GRIFFITH: My Lord, so far as the respite care is concerned, I have explained what I understood was the position as regards Mrs Hughes' preference choice as regards respite care, and I explained the difficulties concerning the PSS service. So, my Lord, that is going to have to proceed on the basis that there is in effect an offer of such respite care as is available. It may be a question for some thought to be given to the terms of the order. So far as the time limit is concerned, my Lord, 14 days should be sufficient, but that as I understand it is subject to the type of respite care that is required.
MR JUSTICE MITTING: Well, it is weekend respite care including overnight care.
MR HARROP-GRIFFITH: My Lord, yes, but the difference between Kenny not staying in the property over the weekend and him being elsewhere.
MR JUSTICE MITTING: Well, as I understand it, the respite care identified as required is elsewhere than his own home. I had misunderstood the position when I first looked at it.
MR HARROP-GRIFFITH: Well, the difficulty with -- if the type of respite care required is that which is provided by PSS, then my understanding is the difficulty continues. If it is another form of respite care, or another location --
MR JUSTICE MITTING: What is the difficulty?
MR HARROP-GRIFFITH: It may well be therefore, the difference between the two is that the respite care that would ordinarily be available would be for Kenny to go into a residential care facility, and that PSS provides something other than that, which may be in a person's own home, ie in a private home. But clearly the order reflects that whatever respite care is provided, then that hopefully will be sufficient to prevent any problems, and we can certainly offer that within 14 days, I am instructed, respite care, on the basis it would be a matter for Mrs Hughes as to whether she was happy with the type of respite care offered.
MR JUSTICE MITTING: One has to bear in mind that the respite care is offered for the claimant's benefit.
MR HARROP-GRIFFITH: My Lord, yes.
MR JUSTICE MITTING: And the benefit to him is an indirect one. It arises because his mother, upon whom the strains are otherwise intolerable, is given respite from having to look after him.
MR HARROP-GRIFFITH: My Lord, yes.
MR JUSTICE MITTING: Of course, his mother's views as his principal carer as well as his mother, even though he is an adult, will count very heavily in all of this. But ultimately, it is his own interests that I am seeking to protect.
MR HARROP-GRIFFITH: My Lord, I mentioned it so as to say that there has been that preference shown by her in the past, but if the order stands as regards respite care, then the Authority can comply with that order and do so within 14 days.
MR JUSTICE MITTING: Well, I think it may take a little longer than 14 days to be met. I might have to say 28 days, but not to be more precise than to say that weekend respite care is to be provided within 28 days with liberty to apply in the event it causes any difficulties.
MR HARROP-GRIFFITH: My Lord, perhaps I can ask for 28 days as far as reassessment is concerned. My instructions are it can be done more quickly than that, but it is always difficult --
MR JUSTICE MITTING: Well, a better job is actually more important than an immediate one. Again, 28 days seems to me to be the sort of period in which an assessment can sensibly be made rather than a short period. Very well. The order then will be that weekend respite care is to be provided within 28 days, and that a reassessment of the claimant's welfare needs is to be made within 28 days. Costs.
MR WISE: I am much obliged for that, my Lord. That provides practical benefit for my client for which she will be most grateful. With regards to costs, my Lord, we have succeeded, we seek an order that the claimant's costs be borne by the defendant. We are also legally aided, so seek an order for detailed assessment.
MR HARROP-GRIFFITH: My Lord, there is nothing that I can say about costs, but I do seek permission to appeal, if your Lordship wants to hear me on that now.
MR JUSTICE MITTING: Let me deal with costs first. I order that there be a public funding assessment of the claimant's costs and that those costs to be paid by the defendant, to be the subject of a detailed assessment as between the parties on the standard basis if not agreed.
MR HARROP-GRIFFITH: And as regards permission to appeal, my Lord, I ask permission in respect of the issue concerning accommodation as to the part of your judgment dealing with the type of accommodation that be provided under Part VII in comparison with the type of accommodation that can be provided under section 21 of the 1948 Act. My Lord, I do not know if your Lordship wants me to go into more detail about that. You have my submissions.
MR JUSTICE MITTING: Is this an argument that is of general interest to local authorities, or is it something that simply has occurred to you in the course of this case --
MR HARROP-GRIFFITH: No, my Lord. It has not occurred to me in the course of this case. The position is this: if one takes Wahid as being the most recent visit, I say "visit", the most recent analysis of the law, in the court below, Stanley Burnton J made it clear that he thought that it was a matter that had to be considered by the Court of Appeal soon. I do not quote accurately, but that is my recollection of what he meant by his observations. It then went to the Court of Appeal, and as your Lordship has seen, the issue that was considered by the Court of Appeal and on which the case was decided did not give rise to -- certainly so far as Pill LJ was concerned, no comment necessary on his part, so he had said nothing. So far as Hale LJ was concerned, it was clear that she had a lot to say about this issue, but it is obiter, albeit strong obiter. It is a difficulty, a particular difficulty, and it may well be that the way your Lordship has put it now has created even more difficulties in seeking to put the dividing line between Part VII and section 21.
My Lord, that is the way I put it. It is not a small matter. If your Lordship would prefer the Court of Appeal to look at it, then that is a matter for your Lordship, clearly. But in my submission, it is right for being dealt with on a basis --
MR JUSTICE MITTING: I only asked whether it is something that as it were occurred late in the day to you in the course of this case or is of general importance because of the way in which it appeared, in other words without warning.
MR HARROP-GRIFFITH: My Lord, I took this at a very late stage. As soon as I looked at it, it seemed to me there was this argument based on Wahid, particularly in the light of the assessment and the attached care plan. So it was late in the day so far as that is concerned, but it is a matter that I have had on my mind for some time in respect of other cases, none of which since Wahid I do not think have come on for a hearing, certainly not in my experience, and I do not think any other cases have come up for hearing on the point.
MR JUSTICE MITTING: Is it in fact of any practical importance given that if the duty does not arise under section 21, it will arise under Part VII?
MR HARROP-GRIFFITH: Well, it is of practical importance for this reason: Parliament has entrusted housing authorities with providing housing for the community at large, and as your Lordship knows, there are priorities involved in allocating housing. Housing of all types is in short supply, and housing authorities have to maintain a list for allocation, in particular for allocation, and they have their duties under Part VII in effect in emergency situations. So that is what Parliament has done.
There is this section 21 of the National Assistance Act, which your Lordship will have seen has particularly in the context of asylum seekers been brought to the fore in recent years, when it was in a back-water before then, because it was thought that it only gave rise to a duty to provide accommodation in a residential care home --
MR JUSTICE MITTING: It is a back-water that has received attention from Parliament, though.
MR HARROP-GRIFFITH: Well, it has received attention from Parliament as regards what is sufficient to trigger the duty to be provided with accommodation, ie to be destitute is sufficient to trigger the duty, and Parliament has recognised that. But it is still a matter -- if one puts to one side the question of whether ordinary accommodation can be provided, the significant point in this case is whether section 21(8) in connection with the Housing Act means that in this sort of case where a person needs specially adapted accommodation, they can only go under section 21. In effect, in that way, a Social Services authority cannot say to housing, "Well, you have to do it, look at section 21(8)". So it is important, in my submission, for there to be something more definite about where the dividing line is, because the guidance and the statute for that matter, I think it is referred to briefly in my learned friend's submissions today, the statute referred to how authorities ought to cooperate, but it does not say who should be doing so. And it is important for Social Services departments, because on occasions they are ordered to provide accommodation that they do not have in the housing stock, it may be that in many cases there is a cooperation at that point with housing, but housing have their own priorities on the other side of the fence. So in effect people are using, can use -- I am not suggesting this is an abuse -- can use section 21 to get priority for housing that they would not be able to get in the other housing channel. Now, whether that is right or wrong in general terms for the sake of society is another matter, but it is important and unresolved, apart from the obiter comment of Hale LJ.
MR JUSTICE MITTING: Well, it certainly has arisen from the decision in this case, and therefore there is something upon which an appeal can bite. I take it, and I hope I am right in taking it, that if I were to grant you permission, your authority would not either treat that as staying the order that I have made or apply to the Court of Appeal for a stay of the order that I have made, because I do regard it as of practical importance that something is done about this claimant's needs. I appreciate that I have only made a declaration in relation to housing, but there is behind it the implied promise that I will make further orders if things do not turn out as everybody hopes.
MR HARROP-GRIFFITH: Yes. Well, my Lord, certainly so far as the present order is concerned, there is nothing -- as your Lordship says, it stands as it is. We would not seek to do anything other than by appeal if Liverpool choose to proceed. As for the future, my Lord, the steps will be taken to find the accommodation, and if necessary clearly an application will be made to come back, and I will certainly take specific instructions on that point as to what is to happen at that stage. One does not know precisely when that is going to happen, one hopes that this accommodation that is to be seen next week will be suitable and suitable arrangements can be made before appending its availability in orders.
MR JUSTICE MITTING: But as far as that part of the order is concerned, you do not seek any permission to appeal, you have made that perfectly clear, as far as the welfare services part of the order is concerned?
MR HARROP-GRIFFITH: No.
MR WISE: My Lord, I wonder if I can make some submissions before your Lordship.
MR JUSTICE MITTING: Let us see whether Mr Harrop-Griffiths has finished.
MR WISE: My Lord, I apologise. I thought he had.
MR HARROP-GRIFFITH: My Lord, that is as much as I wish to say. I do not therefore seek permission as regards the welfare point.
MR JUSTICE MITTING: Thank you. Mr Wise.
MR WISE: My Lord, we would urge your Lordship not to grant permission to appeal. Your Lordship asked my learned friend whether this was a matter that was of general concern to local authorities, and clearly if that were the case, that would then engage the limb of Part 52 dealing with other matters and overriding considerations which would justify the grounds of leave to appeal.
There has been nothing apparent in the preparation of this case to suggest that this issue particularly concerns Liverpool; neither is there anything in the preparation of the case to suggest that it concerns authorities generally. This was a point that was made extemporarily by my learned friend. If it was a matter that was of considerable concern to this defendant local authority, then one would have expected the issue to have been flagged up at an early stage, certainly before the hearing.
In making that submission, I must emphasise, I make no criticism of my learned friend. I am aware that he took the brief late and cannot be held responsible for what has happened in the past. But of course it is not the approach of counsel that is crucial, it is the approach of the local authority, and if the local authority have perceived this to be a particularly important issue, then one would have expected to see something of it in the course of the preparation for this hearing.
Neither is there anything in the papers to suggest that this is a matter that is of general public importance which concerns authorities throughout the land. The reality is in our submission, my Lord, that this is a fact specific case. That is the way in which it has always been presented on behalf of the claimant, and indeed that is the way that your Lordship has determined the case. It is entirely consistent with the statutory regime, entirely consistent with the comments of Hale LJ in Wahid.
My learned friend prays in aid the difficulties that local authorities have in determining where the dividing line is between section 21 obligations and Housing Act obligations. But no bright line can be drawn between those two provisions. Each case will inevitably depend upon its own facts and each case will involve a degree of judgment on the part of the individual local authority concerned. It is very difficult to see how the Court of Appeal could set down any rule that would show which side of the fence each individual case would fall.
So we say that this is a fact specific case, my Lord, not appropriate for the Court of Appeal, and in any event would have very poor prospects of success. So for those reasons, we would invite your Lordship not to grant permission to appeal.
MR JUSTICE MITTING: Thank you. Anything you want to say in reply, Mr Harrop-Griffiths?
MR HARROP-GRIFFITH: No, my Lord.
MR JUSTICE MITTING: Mr Harrop-Griffiths, you must seek the permission of the Court of Appeal to appeal this matter, if those who instruct you or local authorities generally regard it as a question of great importance. Given the way in which it has arisen in this case, I am not so satisfied that local authorities do so require or that it is a fact of such great importance that I should give you permission to appeal.
MR HARROP-GRIFFITH: So be it, my Lord.
MR JUSTICE MITTING: The Court of Appeal may well take a different view, but it is a matter for them.
|Can do Independently||Needs Assistance||Comments||Comments||Comments||Comments|
|Unaided||With Difficulty||With Supervision||From 1||From 2|
|Sleeping||x||Does not sleep well, sometimes only 3-4 hours.|
|Waking up||x||Generally wakes in the early hours of the morning|
|Getting up||x||Co-ordination is poor, needs support|
|Going to bed||x||Needs assistance at all times|
|Dressing/undressing||x||Unable to do task independently.|
|Climbing stairs||x||Unable to do task independently a stair-climber has been provided|
|Getting washed||x||Unable to do independently.|
|Personal appearance||x||Kenny is unable to make conscious choices.|
|Toilet||x||Kenny is doubly incontinent and wears pads at all times.|
|Bathing/showering||x||No hoist in house, Kenny needs two carers to bath/shower him-Mum and one other.|
|Personal hygiene||x||Kenny cannot see to his own needs.|
|Administer medication||x||Unable to do task independently|
|Summon help||x||Unable to do task independently.|
|Eating||x||Kenny cannot feed himself.|
|Preparing snacks/drinks||x||Kenny has poor co-ordination and is unable to do task independently.|
|Using a washing machine||x||Cannot do task independently|
|Housework||x||Cannot do task independently|
|Ironing||x||Cannot do task independently|
|Weekly shopping||x||Cannot do task independently|
|Shop for single items||x||Cannot do task independently|