R (on the application of Glynis McKeown) v Islington LBC (2020)

What Happened

C was 63 years old, and had had health difficulties since the age of 38. In 2019 she had her right leg amputated above the knee, resulting in her being wheelchair bound.

She was a secure tenant of a garden maisonette, and the only way C could get into her home was for someone to carry her up or down the steps to the front door. She applied to the Council for a disabled facilities grant (DFG) to fund a platform lift.

The Council refused funding. It stated that it found the home unsuitable for C, the works were not reasonable or practicable, and offered to find her and her family suitable alternative accommodation.

S23 and 24 of The Housing Grants, Construction and Regeneration Act 1996 set out the purposes of grants, and the approval of applications;

S23 Disabled facilities grants: purposes for which grant must or may be given

(1) The purposes for which an application for a grant must be approved, subject to the provisions of this Chapter, are the following:

(a) facilitating access by the disabled occupant to and from – (i) the dwelling

S24 Grants: approval of application.

(3) A local housing authority shall not approve an application for a 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 carryout the relevant works having regard to the age and condition of – (i) the dwelling …”

C declined this offer as she was comfortable in her home and was close to her friends and family. She sought judicial review over the Council’s decision to refuse her application.

What was found

Section 23(1) was satisfied in this case. C could not enter or exit her home, thus a grant for facilitating access (the relevant purpose) must be approved. That means that the Claimant has “established [her] grant eligibility in principle” relying on the judgement in the R(B) v. Calderdale MBC case [2004] EWCA Civ 134 [2004] 1 WLR 2017 at §28) (under section 23(1)(a)).

Needs’

The only means of facilitating the Claimant’s access to her home was to install a platform lift. In order to determine whether this is “necessary and appropriate”, one has to determine what ‘needs’ are referred to in section 24(3)(a). C stated that she had a ‘need’ to access her home, whereas the Council said this was too narrow.

The Judge started by considering Bloomsbury International Limited v. Sea Fish Industry Authority, which stated that “In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance.”

The Judge also stated that “The overriding purpose of the DFG is to make the dwelling or building suitable for the accommodation welfare or employment of the disabled occupant1

“[Sections 21 and 22 of] the statute is making clear that DFGs are not restricted to local authority tenants or tenants more generally but extend to disabled persons whether they are owner occupiers, tenants or simply occupiers (section 22A). The reason for that seems self-evident when one examines the list of purposes in section 23(1) which include facilitating access to the dwelling, making the dwelling safe, facilitating access to the living room, bedroom, bathroom etc. These are very basic needs which persons who are not disabled take for granted and Parliament has decided that grants in respect of such matters will be mandatory”

“The fact that different forms of tenure at the relevant property are included within the terms of DFGs means that in principle the interpretation of sections 23 and 24 must be capable of accommodating not only local authority tenants but tenants generally and indeed owner occupiers. This is important in relation to one of the main planks of the Defendant’s case which is that the Claimant’s home is not suitable for her, that the Defendant will look for a new alternative home and rather than carrying out expensive and not straightforward works to the Claimant’s home, the grant should be refused and the Claimant should move to a new home. But the fact that the terms of sections 23 and 24 must be applicable to all, including owner occupiers, is a strong indication against the Defendant’s position. Had the Claimant exercised her right to buy, it would not in my judgment be open to the Defendant to refuse the grant on the basis that she must sell up and move elsewhere. The structure of the Act, the legislative history and its purpose which relates, according to section 23, to “the dwelling”, i.e. the person’s home for the time being, exclude such an approach.”

“True it is that an external platform lift will do nothing to improve the suitability of the Claimant’s kitchen or bathroom for a disabled person but that is in my judgment the wrong question on three counts. First and very obviously a platform lift is confined by its nature to the Claimant’s needs to access/exit her home because that is what brings the application within section 23; second because suitability is a housing test which may well be the correct test for selecting suitable accommodation but is not one which is to be found in section 24(3); third because this is the Claimant’s application for monies to do works for a narrowly defined purpose, not a request to the Defendant to do works to her home as might be the case under other legislation applied by the Defendant to the Claimant’s or her husband’s needs

Effectively, the judge stated that the overriding purpose of the legislation and grant system was to make dwellings suitable for their occupants, so the appropriateness of any DFG application should be referenced against the need it was designed to serve. In this case it was the need to access and exit her home.

Necessary and appropriate

The judge stated that platform lift was necessary and appropriate;

“it is common ground that the platform lift is necessary in the sense that a stair lift will not do the job (due to additional steps after the main run of steps). It also does not appear to be in dispute that a platform lift is “appropriate” in the Calderdale sense that it would permit the Claimant to enter and exit her property using her wheelchair.”

The Council had given numerous reasons why the DFG application failed the “necessary and appropriate to meet the needs of the disabled occupant” test, to which the judge did not agree with. The Council mainly argued that C’s maisonette would not be suitable in the long term for her;

“The assessment by (the Council) was directed at whether difficulties accessing the internal stair lift “may result in her current accommodation becoming increasingly unsuitable for her long-term needs”. In my judgment that is not a relevant consideration on the issue of “necessary and appropriate to meet the needs” of the Claimant in section 24(3)(a) given my conclusion on the needs being referred to, i.e. the needs to access and exit the home.”

“Section 24(3)(b) requires the Defendant to be satisfied “that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling”. Previously section 24(4) (now repealed) added to consideration of the age and condition of the dwelling whether it was fit for human habitation. Dyson J in ex p Mohammed cited above expressed the following view: “No doubt, the reason for these conditions was an appreciation of the fact that it was not a sensible use of resources to make a DFG to improve an old, dilapidated building …””

However, the judge pointed out that the “considerations taken into account by (the Council) do not relate to the age or condition of the dwelling but rather to the suitability of the dwelling for the Claimant’s care needs…. it cannot be said that the lack of suitability in various respects of a person’s home excludes such a person from access to a grant in order to facilitate the basic need of accessing/exiting the home.”

The judge concluded; “Finally, I return to the point which I described earlier as one of the main planks of the Defendant’s case. This is the point that the Claimant’s need to leave her home would be more suitably met by a move to wheelchair accessible accommodation. For reasons which will be apparent with regard to my conclusion that the application for the DFG for a council tenant must be considered on the same basis as an application from an owner occupier and that what is being considered is the need to access the dwelling which the applicant occupies as his/her home, in my judgment it is not lawful to refuse a DFG on the ground that the Claimant must move her home.

Remedy

C sought orders compelling the Council to approve the DFG and quickly commission the work. However there was confusion as to the Council’s policy; C was supposed to commission the work in accordance with the grant. So, the judge issued an order to quash the decision, and have the Council reconsider its decision according to the law as laid out.

Comment

This decision lays to rest a longstanding moot point, in local government law, which may well be of relevance to the much more common question whether a council can expect a person to move to a house of its own choosing, in order to deliver cheaper or more cost effective social care. We have always thought that the answer would be No, applying public law principles, despite the discretion on the part of a council to say We believe that the needs could be met by pointing at this that or the other community based service so we will not be providing anything ourselves.

We think it’s markedly different where the only way of accessing this community based alternative would be for the client to spend money of their own on an long term ongoing paying for accommodation, when in fact the can point to the Care Act and say – “Here I am, living here, these are my apparent needs – please care plan now for meeting them.”

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