B v A Metropolitan Borough Council (Unreported) (4th February 2004) (CA)

Disabled facilities grant – adaptations – necessary or appropriate

 

The Court of Appeal has overturned the High Court’s ruling that it was reasonable and lawful for a local authority decline a disabled facilities grant, because it deemed the proposed works to be neither “necessary nor appropriate”

 

B’s oldest son, D, suffered from dyspraxia and Asperger’s Syndrome. D’s needs were complex and he displayed challenging and aggressive behaviour exacerbated by the lack of space in the home. D displayed particular aggression to his brother, S, who shared a room with him. B applied to the council for a disabled facilities grant to pay for the conversion of the loft in their council house into an extra bedroom, so that D could have his own room. The council refused B’s application, some three years after it was made, on the grounds that D did not meet the criteria for a disabled facilities grant as he was independently mobile and able to access all areas of his home. B applied for judicial review of the council’s decision, seeking an order quashing the council’s decision to refuse to provide the grant; and a mandatory order requiring the council to provide B with a grant sufficient, up to the limit allowed by law, to finance the extra bedroom. B contended that the council was bound to approve his application because its purpose was within s23(1)(b) Housing Grants, Construction and Regeneration Act 1996. The council disputed that the purpose of the requested grant was within s23(1)(b) and argued that, in any event, it was precluded from making the grant by s24(3) as it was not satisfied that the works were either appropriate or necessary to meet D’s needs.

 

Dismissing the application, the High Court held that the issues arising under s24(3) would normally have differed from those arising under s23, which was concerned with the purposes of the disabled facilities grant and of the works to which it related, whilst s24(3) was concerned with whether the proposed works were necessary and appropriate. Safety measures that went beyond the necessary and appropriate were liable to fail the test under s24(3), even though their purpose fell within s23(1)(b). The council had considered the correct questions when it assessed B’s application; namely whether D and the other occupants of the house were unsafe and whether the provision of an additional bedroom would make the house safe. The council did not accept that the lack of a separate bedroom for D meant that the house was unsafe or that its provision would make the house safe. That assessment was open to the council on the information before it and was supported by the occupational therapist’s evidence that the provision of an additional bedroom would not resolve D’s behavioural problems. It was not obvious that the decision was inconsistent with anything in the Department of Transport, the Environment and the Regions circular 17/96.

 

The Court of Appeal, however, overturned that ruling. It said that the judge had not properly applied the statutory provisions contained in the Housing Grants, Construction and Regeneration Act 1996 to the facts known by the council.

 

No works would ever make premises completely “safe” within the meaning of s23(1)(b) Housing Grants, Construction and Regeneration Act 1996 and, adopting the wording of the Department of Transport, the Environment and the Regions Circular 17/96, to come within s23(1)(b), the proposed works must be such as to minimise the material risk, that was, to reduce it so far as is reasonably practicable if it could not be eliminated. A separate bedroom for D would not reduce the risk of him harming or distressing his brother elsewhere, however, it would obviate the risk of him causing harm whilst sharing a bedroom.

 

Accordingly, on the facts known to the council, the case fell within s23(1)(b). The council had failed to segregate the s24(3) question from the s23(1) question and answer it in the light of the fact that D had, in principle, established his eligibility for a grant under s23(1)(b). S23(1) and s24(3) had to be applied sequentially. S23(1) was a gateway provision and s24(3) acted as a control to applications that came through that gateway.

 

The decision was quashed and the council was to reconsider B’s application.

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