R (Bernard and Another) v Enfield Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 25 October 2002 |
| Neutral Citation | [2002] EWHC 2282 (Admin) |
| Docket Number | CO/1060/02 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 October 2002 |
[2002] EWHC 2282 (Admin)
Mr Justice Sullivan
CO/1060/02
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MR R CLAYTON QC AND MISS J RICHARDS (instructed by Tyrer Roxburgh) appeared on behalf of the CLAIMANT
MR H HARROP-GRIFFITHS (instructed by London Borough of Enfield, Legal Services Department) appeared on behalf of the DEFENDANT
This is a claim for damages under section 8 of the Human Rights Act 1998 (the Act). The factual background is not in dispute and is as follows.
Factual Background
The second claimant, Mrs Bernard, is 48 years old. She is severely disabled following a stroke. She suffers from hemi paralysis and has almost no use of her right arm and leg. She has very limited mobility and is dependent on an electrically operated wheelchair. She is doubly incontinent and also suffers from diabetes. She is cared for by her husband, the first claimant, who also looks after their six children, whose ages now range from between 20 to 3 years old.
For about seven years the claimants were owner/occupiers of a house in Firs Lane, London N21. That house was fully adapted by the defendant's Social Services Department to meet the second claimant's needs. Sadly, mortgage arrears built up and the claimants sold the house. They took a tenancy of a property which was not adapted in Turnpike Lane for about 15 months. When that tenancy expired they applied to the London Borough of Haringey for accommodation. Haringey referred them to the defendant and, in October 1998, the family was accommodated by the defendant's Housing Department at 45 Steel Road, Tottenham, pending inquiries under the Housing Act 1996.
The claimants argued that this property was not suitably adapted to meet the second claimant's needs. Rent arrears built up, and the defendant's Housing Department then accommodated the family at 26 Shrubbery Road. They moved in on 13th June 2000 and remained there until they moved out on 14th October 2002, the day before the hearing of this claim commenced.
By a letter dated 29th June 2000, the defendant's Housing Department notified the claimants that they were considered to be intentionally homeless from 45 Steel Road. The claimants requested a review. The earlier decision was confirmed by letter dated 3rd October 2000. The claimants appealed to the County Court. Their appeal was dismissed on 1st December 2000. The Court of Appeal gave them permission to appeal, heard the appeal on 4th December 2001 and dismissed it.
On 12th February 2002 the defendant's Housing Department notified the claimants that they would be evicted from 26 Shrubbery Road on 25th March. The claimants' solicitors protested and the threat to evict the claimants was effectively withdrawn in a letter from the defendant's solicitor dated 22nd February 2002.
The claimants' solicitors protest was well-founded. On 15th September 2000, the defendant's Social Services Department had undertaken a number of assessments of the claimants' needs. Roxine Harris, a disability social worker, and Sally Penfold, an occupational therapist, visited the claimants at Shrubbery Road and undertook a Straightforward Assessment and Care Plan, a Comprehensive Assessment and Care Plan and an Occupational Therapy Assessment. No criticism is made of these three assessments, indeed they appear to be a model of thoroughness. The Straightforward Assessment described the second claimant's needs as follows:
"Mrs Bernard had a stroke when she was 6 months old which resulted in right hemiplegia spasticity in right upper and lower limbs; shortening of right lower limb and hypertension. Mrs Bernard uses an electric wheelchair and walking stick for mobility. However she is unable to use wheelchair as the property is inaccessible—she sits in a shower chair most of the day. She is unable to undertake personal care tasks—can manage a little with left hand. She depends totally on her husband to assist with all aspects of personal care and to maintain personal hygiene. Needs assistance to cut up food but independently feeds herself. Owing to frequency and urgency means unable to access toilet; experiences stress incontinence, therefore wears pads. Accommodation inaccessible—remains in lounge area, unable to access first floor. Experiences disturbed nights owing to pain in right side—needs to be turned frequently during the night and husband assists."
The report went on to say:
"Husband is the sole carer—Mr Bernard is happy to continue with above but has requested assistance with childcare commitments."
The agreed outcomes and care plan objectives included the following:
"1. [Occupational Therapist] to undertake full assessment for appropriate adaptations/equipment to enable Mrs Bernard to function safely/effectively in the home.
2. To take housing issue to Panel requesting housing report for recommendation for suitable accommodation."
The Comprehensive Assessment described the background in a little more detail:
"Mr and Mrs Bernard and 6 children aged between 11 months and 19 years live in temporary accommodation. The property is not suitably adapted to meet the needs of Mrs Bernard and is inaccessible for wheelchair use. As a result, Mrs Bernard is confined to the lounge room where her bed is. The room is shared with her husband and 2 youngest children. The increasing difficulties in meeting Mrs Bernard's care needs in this property is causing stress to all concerned. Mr Bernard has reported the above to the Council and for some time requested more suitable accommodation. Social Services department has been requested to undertake a community care assessment to provide, as identified/agreed appropriate support. Mr Bernard (sole carer) supports his wife with all essential daily living tasks and also manages child care commitment."
Under a heading "Desired Outcome", this is said:
"Mrs Bernard would like to feel safe at home. Currently she cannot answer the front door. She is unable to access outside. Mrs Bernard needs assistance with all essential daily living tasks. Mrs Bernard would like a home suitably adapted for wheelchair use/equipment to enable her to function safely/effectively, which would provide a level of independence and improve quality of life."
Under "Personal Care" it said:
"Mrs Bernard depends totally on her husband to assist/support with all essential daily living tasks. Mr Bernard lifts his wife for all transfers. The bathroom is not easily accessible, have to negotiate steps. Once inside Mrs Bernard sits on the side supported by her husband to swing her legs into the bath for a wash."
Under "Personal Safety":
"Mrs Bernard feels very unsafe at home. Occasionally she is left alone with the two youngest children when her husband has to collect the other children from school. At these times she feels particularly concerned should there be an accident/emergency she could not raise an alarm or help the children. Mrs Bernard has fallen 4 times injuring her breast and thumb. Generally feels very vulnerable in her situation."
Under "Household Tasks":
"Mrs Bernard is unable to carry out any domestic tasks—she is confined to the lounge room. Her husband undertakes all household tasks. The older children provide support occasionally by doing the shopping."
Under "Housing":
"Terraced 2 storey, 4 bedroom temporary accommodation. The property is inaccessible for wheelchair use. It has no adaptations to meet the needs of a disabled person. Mrs Bernard is confined to the lounge room where her bed is. She is assisted with all daily living tasks in this area. The property is accessed via the front door which opens from a small front area directly into the lounge room. This obviously affords no privacy. The room is cramped and is shared with her husband and the two youngest children … There are concerns about the safety of children accessing staircase without adequate support."
Under "Mobility":
"Mrs Bernard needs assistance with all transfers. She can stand with support for a short while but becomes very unsteady. Mrs Bernard uses an electric wheelchair for mobility however, she has been unable to use this in her present property. She uses a walking stick to help her to stand. Mrs Bernard sits in a shower chair most of the day. She finds this extremely uncomfortable seating—lower part of her body becomes very sore."
The summary and care plan says this:
"Mrs Bernard and her family need assistance to move to a suitable adapted property where she would be able to resume a level of independence and her care needs would be safely met."
The recommendation is:
"… to take housing issues to Panel and to request housing report for recommendation for suitable accommodation."
The Occupational Therapy Housing Assessment Report described the property, said that it was not adaptable and explained why that was so. Under "Client's View Of Need" it said:
"Wheelchair accessible property to enable independent mobilisation within home. To have safe access to bathroom, toilet, kitchen and bedrooms."
Under "Carer's View Of Need" it said "As above".
As part of the assessment process, the first claimant completed a self assessment form in which he explained that the children suffered because he was not able to take them out. He had no social life and, because of the burden of looking after his wife, he was unable to pursue any leisure activities:
"Because of the wife's situation there is always a strain on our relationship but somehow we always seem to overcome this. I have to understand the tremendous strain...
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