R (B) v Calderdale Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LORD JUSTICE CLARKE,THE PRESIDENT |
| Judgment Date | 04 February 2004 |
| Neutral Citation | [2004] EWCA Civ 134 |
| Date | 04 February 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2003/1799 |
[2004] EWCA Civ 134
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE STANLEY BURNTON)
Royal Courts of Justice
Strand
London, WC2
The President of the Family Division
(Dame Elizabeth Butler-Sloss)
Lord Justice Clarke
Lord Justice Sedley
C1/2003/1799
MISS CLAIRE MISKIN (instructed by Ridley & Hall of Huddersfield) appeared on behalf of the Appellant
MR GERRY FACENNA (instructed by Corporate Services Directorate, Calderdale Metropolitan Council) appeared on behalf of the Respondent
The issue
This appeal concerns the nature and ambit of the statutory requirement for a local authority to give a grant in order to make a dwelling safe for a disabled occupant and others residing with him.
The claimant is the father of four children, the eldest of whom, D, is autistic and is thought to suffer from Asperger's syndrome. The family live in a rented three-bedroom house in which D shares a bedroom with the next son, S. He is uncontrollably aggressive towards S, frightening him while he sleeps and attacking him when they are in the bedroom together.
The family therefore want a grant to build an additional bedroom in which D can sleep on his own. It is their case that this is necessary and appropriate to meet D's needs by making the house safe for him and his siblings, and that the respondent council's refusal of a grant is unlawful. This claim was rejected by Stanley Burnton J, who granted permission to appeal on "issues as to the construction of the 1996 Act".
The law
The Housing Grants, Construction and Regeneration Act 1996 by s.1(1) and (4) gives the name "disabled facilities grant" to the provision of facilities for a disabled person in a dwelling. By s.100 it defines a disabled person, and there is no dispute that D falls within the definition.
S.23(2) empowers the making of discretionary grants for related purposes outside the mandatory ones, but Calderdale MBC has no money for these. The only question is therefore whether it is obliged to make a mandatory grant under s.23(1), subject to s.24(3). The judgment below, [2003] EWHC 1832 (Admin), sets out these provisions in full, but it is sufficient for this appeal to cite the following key elements:
23(1) The purposes for which an application for a disabled facilities grant must be approved, subject to the provisions of this Chapter, are the following:
…..
(b) making the dwelling or building safe for the disabled occupant and other persons residing with him.
24(1) The local housing authority
(a) shall approve an application for a disabled facilities grant for purposes within section 23(1)
…..
subject to the following provisions.
…..
(3) A local housing authority shall not approve an application for a disabled facilities grant unless they are satisfied
(a) that the relevant works are necessary and appropriate to meet the needs of the disabled occupant
…..
In spite of the unhappy phrasing of the opening words of s.23(1), the meaning of these provisions is straightforward. If the facts (and it must be for the local authority, at least in the first instance, to establish and evaluate these) come within any of the paragraphs of s.23(1), a grant must be made, so long as the local authority is also satisfied that the works are necessary and appropriate to meet the disabled occupant's needs. The effect is that eligibility for a grant under s.23(1) is a matter of law depending on the ascertained facts, but that whether the works are necessary and appropriate is a matter for the local authority's judgment, subject to the ordinary constraints of public law.
In the present case the judge reached the contingent view, with which I respectfully agree and against which there is no cross-appeal, that the council's decision that it was not satisfied in any case that the works were necessary and appropriate within s.24(3) was not one to which it was obliged to come. He left open whether its reasoning in support of its conclusion on the subsection was tenable. I have no doubt that it was not. To say, as the council said in its letter of 6 March 2002, that the works were not appropriate "because there is no clear case for a mandatory grant" is to collapse s.24(3) into s. 23(1) —an error against which Stanley Burnton J gave a necessary warning in paragraph 33 of his judgment. There was a patent failure to give a lawful reason for the adverse conclusion under s.24(3), so that if the appeal succeeds under s.23(1) the council will have to take a proper decision under s.24(3).
The facts
It has been uncontested that D's autism takes the form of a behavioural disorder manifested in challenging and aggressive behaviour, especially towards his siblings. He is also dyspraxic. There was evidence that he was not a significant problem at school. But the evidence before the judge was that ever since 1997, when the younger brother S had begun sharing D's bedroom, D had been subjecting him to dangerously inappropriate horseplay and to violent interference with his sleep, day after day and night after night. S, unsurprisingly, was now suffering night terrors and eczema.
In November 1998 the claimant and his wife applied to the council for a disabled facilities grant to enable them to convert the loft of their house into a bedroom for D. It seems to have been assumed without inquiry that the lessor, Pennine Housing 2000, is willing to let this be done, and we have made the same assumption. Because there was at that time no occupational therapist on the council's staff, it was not until December 1999 that an assessment was made. In her report written the following month, January 2000, Mrs Greenhalgh made no reference to the risk of injury to S and the fact of sleep deprivation. Explaining the basis of the grant application she said only: "Due to DB's behavioural problems, both boys cannot be allowed in their bedroom to play at the same time." She concluded that the real problem was overcrowding, not disability. But since at that stage the application had been made under paragraph (d) of s.23(1), which includes the provision of a bedroom for the disabled person but which is no longer relied on, the initial refusal by letter dated 12 April 2000 is no longer in issue.
In January 2001 the claimant and his wife wrote again to the council seeking help. When no reply came they went, in April, to the local ombudsman (the Commissioner for Local Administration). In response to the investigator's inquiries, the council agreed to obtain a report from an independent occupational therapist, Ms Johnson. By the time she reported Ms Johnson had the report of a consultant clinical psychologist, Dr Upadhyaya, diagnosing Asperger's syndrome for the first time. She concluded that D needed "his own space where he could feel safe and be safe"; that "D having a bedroom of his own would achieve this"; and that D "needs to be able to have this space so that the characteristics of Asperger's syndrome can be managed more effectively". All this material was therefore in the council's hands.
In March 2002 the council replied to the ombudsman that it would not make a grant, essentially because "the evidence available primarily relates to D's general behaviour and condition rather than the physical layout or the number of bedrooms therein". The ombudsman, regarding this as an issue of law rather than of good administration, decided to take no further action; and these proceedings were accordingly brought.
The proceedings
Judicial review was sought on traditional Wednesbury grounds: that a series of irrelevant considerations was taken into account; that at least one relevant consideration —circular guidance —was overlooked; and that the ultimate decision was simply irrational.
Stanley Burnton J concluded that none of these grounds was made out. The indicia that D's behaviours went well beyond the shared bedroom, that the occupational therapist had advised against a grant in 1999, and that by January 2000 D's behaviour outside the home had improved —all of them mentioned in the decision letter —were in his judgment matters capable of having a bearing on the s.23(1)(b) question. As to the first, he said (paragraph 44):
"For example, the fact that DB had attacked SB outside their home indicated that the danger to SB was not confined to their shared bedroom. If so, if an additional bedroom were provided, DB might attack SB in another part of the house. If so, the provision of the bedroom would not make the house safe for SB."
As to the other matters, the judge held that they were not irrelevant provided their weight was tailored to their age. He accepted, too, the council's evidence that regard had been had to departmental circular 17/96, which at paragraph 17 said that a s.23(1)(b) grant might be given —
"for adaptations designed to minimise the risk of danger where a disabled person has behavioural problems which cause him to act occasionally or regularly in a boisterous or violent manner, damaging the house, himself and perhaps other people. Where such need has been identified, grant is available to carry out appropriate adaptations to eliminate or minimise that risk."
Finally, the judge held that the decision was one which had been rationally open to the council on the material before it.
Grounds of appeal
The principal ground of appeal is that the judge misinterpreted the word "safe" in its context in s.23(1)(b). In addition it is submitted that in the absence of any reference in the decision...
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