Lambeth London Borough Council v Ireneschild [2007] EWCA Civ 234

The Respondent (I) was a secure tenant living in a property owned by the Appellant local authority (Lambeth) which also had social services responsibility for her. I had suffered serious back and neck injuries in an accident and as a result had lost the ability to stand and move unsupported.  She was a wheelchair user and incontinent of urine and faeces.  She occupied a flat in a converted house with her two young adult sons who were her primary carers.  Lambeth was the landlord of the flat as well as having a duty under s47 National Health Service and Community Care Act 1990 (the 1990 Act) for arranging the provision of community care services.  The flat had access from the street by an external staircase and there were two internal staircases to access different levels.  I claimed that she was unable to move safely around the flat because of its arrangement on different levels. Of particular concern to I was that a fall might render her wholly immobile.  Inside the flat she was very dependent on her sons lifting and dragging her in order to move around.  She considered that her needs required Lambeth to make available to her the ground floor flat in the same house which had been unoccupied for several years and currently not habitable.  Lambeth disagreed.   She sought judicial review of a number of decisions taken by Lambeth in relation to her care and accommodation needs.  The High Court held that Lambeth’s community care assessment was unlawful. The assessment was quashed and Lambeth was ordered to carry it out again.  Lambeth was given permission to appeal to the Court of Appeal.

In an assessment pursuant to its s47 duty, Lambeth produced a care plan which recognised there were concerns over I’s accommodation and recommended contact should be made with the housing department.  An independent Occupational Therapist instructed by Lambeth carried out an assessment and recommended re-housing in accommodation without internal stairs but nothing happened.  Solicitors acting for I asked for a community care assessment to be produced.   The community care assessment recommended that the house in which I lived was returned to a family home so that she could occupy the downstairs area.  A housing needs report recorded that she had fallen in the past and was currently at high risk of falling each time she climbed the stairs.  Her sons were also putting themselves at risk of injury each time they carried her up the stairs.  I’s doctor recommended that she be placed in a ground floor flat to enable her to mobilise safely and minimise her risk of injury.  Lambeth agreed to revise its assessment but none was forthcoming.  A further occupational therapy report then came to light in which her needs were assessed as “substantial”.  Lambeth did not accept this conclusion.  Further assessments were carried out focusing on the sons as carers as well as a second occupational therapy assessment which recommended re-housing on ground floor level with ramped access.  A housing medical report, which purported to consider all previous reports, made some observations and recommendations.  In particular, that I had not actually had a fall for eight years and that most of the time she was able to “rescue” herself and thereby prevent a fall.  I took exception to a number of issues in this report which ultimately recommended a transfer to a more suitable property but did not qualify as an emergency transfer.  The report placed I in the “urgent” rather than “emergency” category for re-housing.  Prompted by the application for judicial review, Lambeth provided a care assessment.  Its author did not list the documents she had taken into account in arriving at her recommendations but decided that I was eligible for support services under Lambeth’s Fair Access to Care Services (“FACS”) criteria.  However her assessor did not find any eligible need arising out of her accommodation.  The assessments and care plan were sent to I who objected to their conclusions but did not invoke the complaints procedure.

I’s main complaints were as follows:

(1) The assessment paid no regard to the contents of the initial occupational therapy report which identified “substantial” risks arising from I’s current accommodation arrangements.
(2) Lambeth failed to consider the risk to I’s autonomy which it was obliged to do by statutory guidance
(3) The assessment failed to consider the fact that I had been classed as in urgent need of re-housing and her community care needs arising out of her accommodation were bound to be substantial and it was irrational to find otherwise
(4) Lambeth had been guilty of procedural unfairness in that it had not allowed I to see the provisional housing medical report.

These were the four grounds on which Lambeth appealed.

In relation to the first point, the court of first instance had held that since I’s care needs were substantial; Lambeth should have taken the report into account and addressed its conclusions before coming to a contrary conclusion.  However the Court of Appeal was not persuaded that I had discharged the burden on her of establishing that there was a failure to take into account obviously relevant material.  On the evidence it appeared that the independent occupational therapy report must have been taken into account although it was not expressly mentioned.  It deduced that I’s challenge was really that the author of the care assessment preferred the housing medical report analysis of the risk of falling to that of the independent occupational therapist’s report.   Although I was not satisfied with the assessment of risk to her sons as carers this was a far cry from saying there had been a failure to take into account a material consideration such as to render the assessment unlawful.

The Court of Appeal disagreed that Lambeth had failed to follow the statutory guidance in the risk assessment or failed to consider the impact this might have on I’s independence.  It stated that this was an overly critical approach and that the context needed to be taken into account.  The assessment was made by a social worker for his employer and it was not a final determination that should be subject to “over zealous legal analysis”, and the court should be “wary in expecting so much from hard pressed social workers.”  The assessment had adequately addressed the issue of independence and the risks to the carers.  There was no failure to address essential questions which were required to be addressed under the guidance.

The court of first instance found that the community care assessment failed to take into account what it considered to be a relevant consideration, namely the medical housing report. In addition, the assessment should have taken into account whether there was a need for care and attention which required new accommodation.  However, the Court of Appeal decided that the fact that I needed to be re-housed as a matter of urgency did not mean that the community care needs should be assessed as substantial.  It was never suggested in the medical housing needs report that the risk of I falling in her accommodation was substantial.  It disagreed that the report had not been taken into account; the fact that it was given less weight than I would have liked did not lay Lambeth open to a public law challenge.

The complaint of procedural unfairness was based on the fact that I was not given an opportunity to address the provisional views of the author of the assessment on several matters. (R)Begum v LB Tower Hamlets held that when significant information is held by third parties which is inconsistent with that provided by the applicant and which will substantially affect the decision of the local authority, the local authority must put that information to the applicant and give him an opportunity to comment on it. There was no significant information inconsistent with that provided by I obtained from a third party.  It was essentially material obtained from I herself.  The process specifically allows for representations to be made after the assessment is completed.  If the assessor had got things wrong I would have been given the opportunity to point this out.  This was not a final determination of an entitlement rather it was an assessment prepared as part of an ongoing process which was capable of further review.  Lambeth was not bound to consult I on the conclusions of the medical housing report before it placed any reliance on them in the assessment process.

Appeal allowed.

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