England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		29th June 2006

1. JAMES GOUDIE QC: This is an appeal by Mr and Mrs Hanson. It is an appeal from a reserved decision of the Teeside Valuation Tribunal ("the Tribunal") on 24th October 2005 following a hearing on 26th September 2005. The case concerns Mr and Mrs Hanson's Council Tax liability in relation to their home over the last 10 years, The Garth, 18 Cheltenham Avenue, Marton in Cleveland, Middlesbrough ("the property"). The appeal to this court is under section 11 of the Tribunals and Inquiries Act 1992. That is an appeal on point of law only. The appeal from the Council to the Tribunal was under section 16 of the Local Government Finance Act 1992 ("the 1992 Act").
2. The billing authority for the property within the meaning of the 1992 Act is Middlesbrough Borough Council ("the Council"). Mr and Mrs Hanson had asked the Council in the latter part of 2004 for a reduction in their Council Tax, Council Tax being a creature of the 1992 Act and various sets of regulations thereunder. The Council refused the request. The Hansons appealed to the Tribunal. The Tribunal, however, dismissed their appeal.
3. The request for the reduction was made under the Council Tax (Reductions for Disabilities) Regulations 1992 ("the Regulations"), as amended, made under the 1992 Act. The basis of the request was that the property had been specially modified to take into account the needs of a disabled person. Mrs Hanson has eyesight problems. She has been registered blind for some years. To alleviate the position, an additional en suite bathroom was built, converting a bedroom in order to do so. This was in October 1996, a few months after the Hansons had moved to the property.
4. This construction was about 19 months before Mrs Hanson was registered as blind but that does not, in my judgment, mean that there is no causative link between her eyesight problems and the construction. She had been registered as partially sighted since 1987. The definition of "qualifying individual" for the purpose of the Regulations is a person who is "substantially and permanently disabled (whether by illness, injury, congenital deformity or otherwise)". If the reduction were allowed, the practical effect would be to shift the property by one band, a difference of £273 per year.
5. I should say that the reason the Hansons did not apply for the reduction until 2004 was that they were not aware of the provision for it until then. I should also add, for the sake of completeness, that since 18th November 2003 the Council has had power under the Local Government Act 2003, section 76, to give a discount in circumstances where they are not obliged to do so by the Regulations, including in the case of people with disabilities.
6. Regulation 3 of the 1992 Regulations provides for a reduction in circumstances that include when a bathroom within the dwelling which is not the only bathroom within the dwelling (as in this case) is "required to meet the needs of" any qualifying resident in the dwelling such as Mrs Hanson. The Tribunal stated that the case law demonstrates the importance of two major issues. First, there has to be an appropriate causative link between the disability and the requirement of the use of the room. That is right. Secondly, it has to be the case that if the room were not available, the disabled person would find it at least "extremely difficult" to live in the dwelling. The phrase "extremely difficult" is not the statutory language.
7. The Tribunal found that this second requirement was not met. Their reasons were as follows:

"The appellants have provided written evidence from their GP to show that the 'extra facility' is of major importance to Mrs Hanson. Her quality of life is improved by the bathroom facilities in the superior en suite bathroom converted from the former bedroom accommodation. The Tribunal acknowledge the opinion of Dr Hargate but accept his judgment is based on his personal knowledge of Mrs Hanson. The Tribunal have to consider the circumstances with regard to criteria set out in the relevant legislation. In the light of the bathroom facilities which already existed at the property, the extra facility is not considered to be of essential or major importance to Mrs Hanson's well-being. The appellants would be able to occupy the property if this additional bathroom had not been created. From the evidence submitted by the parties, if the property was vacant a potential purchaser would not be able to detect that the bungalow had been adapted or altered in a manner to accommodate the specific needs of a disabled person."

8. Mr Hanson, who has appeared before me in person, is puzzled by the sentence:

"The Tribunal acknowledge the opinion of Dr Hargate but accept his judgment is based on his personal knowledge of Mrs Hanson."

So am I. On 12th April 2005 Dr Hargate had written to Mr Hanson as follows:

"I can confirm that she is registered blind and suffers from hypothyroidism and hypotension. Because of your wife's visual difficulties, I consider that it would be entirely appropriate for her to have a bathroom, which is not the only bathroom within the dwelling, which is required to meet the needs of her visual impairment."

On 17th August 2005 Dr Hargate wrote further to Mr Hanson as follows:

"It follows from my previous letter the reason that it would be appropriate to have a bathroom which is not the only bathroom within the dwelling would be to prevent falls and subsequent serious injury which your wife is likely to suffer from in view of her lack of orientation due to her visual difficulties."

So in the doctor's opinion there is a real risk of falls because of lack of orientation due to visual difficulties, which could cause serious injury, and the en suite bathroom assists in alleviating that risk.

9. Mr Mungo Lowe, for the Council, makes the point that there is no medical evidence of lack of balance on Mrs Hanson's part. He accepts, however, that on the evidence before the Tribunal, the need for Mrs Hanson to use the en suite bathroom is to have a place to wash with a reduced risk of slipping or tripping on account of her blindness, and that the particular features which provide security from this risk consist of a grip rail to assist entering and exiting the bath and a bidet. Obviously Mrs Hanson, who is almost 64, may suffer serious injury if she does slip or trip.
10. The statutory test in Regulation 3 as to whether something is "required for meeting the needs of" a qualifying individual like Mrs Hanson is whether it is "essential or of major importance to his well-being by reason of the nature and extent of his disability". So there are two limbs to the test, both of which must be satisfied if the reduction is to be available. First, the additional bathroom must be either essential or, although not essential, of major importance to Mrs Hanson's well-being. The first limb, in other words, may be satisfied in alternative ways: essential or of major importance. Secondly, if the first limb is satisfied in either of those ways, that must be by reason of the nature and extent of the disability, a causative link.
11. The importance of the second limb, the causative link, has been stressed by Silber J in R (Sandwell MBC) v Perks, a judgment of 8th July 2003 in this court, [2003] EWHC 1749 Admin However, whatever may have been the position before the Tribunal, given the Tribunal's reasons, this appeal is primarily concerned with the first limb.
12. Three points immediately appear on the face of the Tribunal's decision. First, although ultimately they apply the statutory test "essential or major importance", they also reformulate that test as "physically or extremely difficult", presumably "physically impossible or extremely difficult". "Physically impossible" may be just another way of saying "essential", but the question arises whether "extremely difficult", the Tribunal's formulation, is a more stringent requirement than "major importance", the statutory language. I should say that the expression "physically impossible or extremely difficult" seems to emanate from a textbook (an extract of which appears at page 53 of the bundle before me), but is not an expression in the Regulations and I am not aware of any authority from which it can be derived.
13. Secondly, the Tribunal gave as the reason for their conclusion that an extra facility is neither essential nor of major importance, that Mrs Hanson would be able to occupy the property if the additional bathroom had not been created. Assuming, however, that to be so, that may go to negate the requirement being "essential" and its absence not making it "physically impossible" to live in the dwelling. But if so, the further question then arises whether that addresses the alternative and lesser, albeit nonetheless stringent, requirement of "major importance".
14. Third, the Tribunal give as part of their brief reasoning that if the property was vacant a potential purchaser would not be able to detect that the bungalow had been adapted or altered in a manner to accommodate the specific needs of a disabled person. Assuming, however, this to be so, the question arises whether this is relevant or, put another way, whether this is imposing an additional hurdle for the Hansons which is not to be found in the legislation.
15. Mr and Mrs Hanson have a further point. The Tribunal stated that the property had an en suite bathroom prior to Mr and Mrs Hanson's alterations. This, say the Hansons, is simply incorrect. There was a shower, but for someone in Mrs Hanson's circumstances this was very different from a bath and bidet. Mr and Mrs Hanson say that the Tribunal misread the plans.
16. Taking the last point first, Mr Mungo Lowe for the Council had two responses. First, he submits that when the Tribunal referred to an en suite bathroom they were using the word "bathroom" in a descriptive way. I reject that submission. I can see that in some circumstances a room might be described as a bathroom even though it has no bath as such but only a hand basin or shower or WC or some combination of those facilities, but in this particular case it is of significance whether one is talking about one or two en suite bathrooms, and it is significant whether a so called bathroom does indeed have a bath rather than just a shower.
17. Secondly, Mr Mungo Lowe submits that even if the Tribunal got it wrong, as I am satisfied they did, this has no bearing on the case. As he puts it in his skeleton argument, this was not the "primary reason" why the appeal was rejected. I accept that it was not, but I reject the submission. The Tribunal's error had some bearing on their decision. I cannot, however, say whether that error was decisive so I revert to the question of the application by the Tribunal of the "major importance" test. I remind myself that it is for the Tribunal to find the facts and to make the evaluation whether, as a matter of degree, there is "major importance". The question is whether or not they duly applied that test.
18. Some guidance on the meaning of the statutory phrase "essential or major importance to a disabled person's well-being" can be found in Williams v Wirral Borough Council [1981] 79 LGR 697, a decision of the Court of Appeal, on appeal from the County Court, on the Rating (Disabled Persons) Act 1978 which, in relation to domestic rates, contained the same phrase in the same sort of context, namely rate rebate. In that case an extra heater was fitted in the living room of a flat for a disabled person needing heat. No extra equipment was fitted for therapy. Fox LJ delivered a judgment with which Oliver LJ (as he then was) agreed. Fox LJ said at pages 700 and 701:

"The judge decided that because the additional heating was necessary by reason of the applicant's disability, it could be said that the room was of essential or of major importance to her well-being by reason of the nature and extent of her disability. I do not feel able to accept that. What is necessary by reason of the nature and extent of the applicant's disability is the heating not the room. Of course she needs a room in which to put the heater, but I think the real question is: why is she using the room. It cannot have been the intention of Parliament to grant a rebate merely because a room is predominantly used by a disabled person. That is quite inconsistent with the language of the section. It seems to me that the user of the room must be related to the disability. Section 1(2)(a) refers to both user and to the fact that the room must be required to meet the needs of the disabled person because of the disablement. The form of the paragraph is such that the two requirements are very closely related. That is, I think, emphasised by the word 'required'. The room must be required to meet the needs of the disabled person by reason of the disability.

It seems to me that the applicant uses the living room simply because, like anybody else, she needs a living room and not because of her disability. She uses it as an ordinary living room. She requires it as a room to live in and not as a room to put the heater in. She needs the heater to give her extra warmth because of her disability. She might equally need extra blankets on her bed, but that would not have the consequence that her bedroom became a room within section 1(2)(a). If a disabled person requires an additional room in the flat to house a particular piece of equipment which is necessary by reason of the disablement (for example, a kidney machine), the case might fall within paragraph (a) because, assuming the room is predominantly used in the way provided by paragraph (a), the room would be used because of the disability. But the applicant does not use her living room because of a disability. In my view, therefore, section 1(2)(a) does not apply to this case. That conclusion is, I think, consistent with the fact that the basis of the applicant's case is her need for the heater, and Parliament has made express provision for heating equipment but only if the equipment serves two or more rooms which is not the present case."

19. In my judgment, for present purposes, only limited assistance can be derived from that authority and certainly, in my judgment, neither the Regulations nor the Wirral case justify interpreting "major importance" as meaning "extremely difficult without" or imposing an additional requirement of third party detectability. In my judgment, the Tribunal misdirected itself in law in the three respects I identified earlier in this judgment. First, they have failed to apply a test of major importance because they equated that with a test of extreme difficulty without, and extreme is a harder test to satisfy than major. Secondly, they failed to apply a test of major importance because, having found that it was not essential, they failed to appreciate that there is the alternative and lesser requirement of major importance. Thirdly, they introduce a further requirement which is unwarranted, namely what a potential purchaser would be able to detect.
20. The Council's case is that neither the grip rail, nor the bidet, nor being able to use a bath rather than a shower, nor the relative proximity of the en suite bathroom, nor any combination of these features are "of major importance" for Mrs Hanson. As regards the bidet, they say that a bidet is a constituent part of a bathroom in the same way as any other piece of bathroom furniture. It does not need to be installed to assist a disabled person. It cannot be equated to a piece of specialist equipment designed for the purpose of assisting a disabled person such as, for example, a bath lift chair. I disagree. The bidet is needed for Mrs Hanson because her blindness means that she needs to avoid having to get in and out of a full bath, even with a grip rail, whenever possible.
21. As regards the grip rail, the Council say that a grip rail is an accessory to, rather than a constituent part of, the bathroom. Its installation in a bathroom is not far reaching enough fundamentally to change the character, usage and purpose of the en suite bathroom as would, for example, a mechanical bath lift chair. I disagree. Different disabilities require different measures. Whether something is characterised as an accessory or as a constituent element is immaterial.
22. The Council go on to say that installation of a grip rail would serve only to reduce the risk of Mrs Hanson slipping or tripping, it would not neutralise the risk. Climbing in and out of the bath still remains a potentially hazardous activity. In such circumstances, the en suite bathroom does not meet all of Mrs Hanson's needs. I accept that the risk is reduced rather than eliminated. I am, however, unable to see why a reduction of risk is not capable of being of major importance. Going only some way towards meeting a person's needs is much better than doing nothing to meet those needs. Nor do I see how the reduction of risk is of any less importance to Mrs Hanson on account of her husband also being able to use the en suite bathroom.
23. Next, the Council say that the handrail could have been installed in the pre-existing bathroom without the need to have constructed the en suite bathroom. In other words, they say that major importance is not to be attributed to the en suite bathroom with handrail on account of its closer proximity to Mrs Hanson's bedroom. The Council say that the pre-existing bathroom is a very short distance from the en suite bathroom, that the journey between the pre-existing bathroom and Mrs Hanson's bedroom does not present any significant hazards (such as a staircase or winding corridor) and that the Hansons have never advanced a case that Mrs Hanson is unable to use the pre-existing bathroom on account of any lack of mobility. The Council submits that there is no compelling reason for finding that the en suite bathroom satisfies the essential or major importance test, or for the finding that there is any adequate causal link between Mrs Hanson's disability and her use of the room.
24. The en suite bathroom is of some importance to Mrs Hanson. Is it, in all the circumstances, of "major" importance? As I have said, in my judgment, the Tribunal misapplied or failed to apply the major importance test. One should simply apply the statutory language. If one were to paraphrase it, I would say that it must be seriously important, of real significance, not of minor importance.
25. Should I remit the case to the Tribunal or am I in a position to determine one way or the other whether the importance is "major" in this case? I have come to the conclusion (and Mr Lowe accepts) that I should determine the point myself. I have come to the conclusion that I should determine the point by concluding that the en suite bathroom is of major importance on account of Mrs Hanson's particular disability. That is, both the element of major importance and the element of causative link are, in my judgment, satisfied. I therefore allow the appeal.
26. MR HANSON: Thank you, my Lord. What about expenses?
27. JAMES GOUDIE QC: I think you are entitled to those. What do you say about that, Mr Lowe, in principle?
28. MR LOWE: I agree with you, my Lord.
29. JAMES GOUDIE QC: Yes, costs follow the event.
30. MR HANSON: Should I negotiate those with the Council or should I tell you about it?
31. JAMES GOUDIE QC: It is always a good idea to avoid leaving loose ends if one can. How much do they tot up to? If you are able to satisfy Mr Lowe then --
32. MR HANSON: We have £200 for the court fee on lodging the appeal, the train fare from King's Cross to Darlington return was £130, tube fare £6. I had already travelled from my house to Darlington so the 60 miles at 50p a mile, that is £30 and the car park fee will be £4. So that is £370. There is nothing for my time which I will not press for.
33. JAMES GOUDIE QC: That seems reasonable, does it not, Mr Lowe?
34. MR LOWE: It does, yes.
35. JAMES GOUDIE QC: I will make an order that the Council pay Mr Hanson's expenses in the sum of £370.
36. MR HANSON: Thank you very much, my Lord.
37. JAMES GOUDIE QC: Thank you both for your assistance.