R (Gulrez) v Redbridge LBC
| Jurisdiction | England & Wales |
| Judge | Hugh Southey |
| Judgment Date | 18 November 2022 |
| Neutral Citation | [2022] EWHC 2908 (Admin) |
| Docket Number | Case No: CO/794/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2908 (Admin)
Hugh Southey KC
(sitting as a Deputy Judge of the High Court)
Case No: CO/794/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alice Irving (instructed by Sinclairslaw) for the Claimant
Owusu Abebrese (inhouse counsel) for the Defendant
Hearing dates: 8 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30 am on 18 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Hugh Southey KC (sitting as a Deputy Judge of the High Court):
Introduction
This is a challenge to an alleged unlawful refusal of an application for a Disabled Facilities Grant (‘a DFG’). In this case the DFG is sought, at least in part, in order to fund the installation of a stairlift.
I have had helpful submissions from counsel on both sides, for which I am grateful. I also appreciate the work undertaken by the solicitors representing the parties. The efforts of the parties have assisted me greatly.
Factual background
The claim form states that:
The Claimant … is 33 years old. He has profound and multiple disabilities, including congenital spastic quadriplegia, cerebral palsy affecting all four limbs, severe global developmental delay, cortical visual and sensory impairments, epilepsy, oropharyngeal dysphagia, keratoconus, sleep disorder, and emotional and behavioural difficulties. The Claimant is registered as blind.
The Claimant is a full-time wheelchair user. He is reliant on others for all his basic selfcare needs. He is doubly incontinent and uses pads day and night. He requires assistance with feeding, dressing, and bathing. He is unable to reliably communicate his needs either verbally or non-verbally. When anxious, he demonstrates this with loud vocalisations, shouting, screaming, and rocking. When frustrated that his needs are not being met, the Claimant can bite himself, bang his head, poke his eyes, and punch himself. ([2] – [3])
I did not understand the Defendant to dispute this description of the Claimant.
The Claimant was at material times in receipt of an intensive continuing health care package from the Barking and Dagenham, Havering and Redbridge Clinical Commissioning Group (‘the CCG’). Has now been replaced by the NHS North East London Integrated Care Board. I have not found it necessary to consider the details of this package for the purposes of this judgment. The Claimant employs NJ Case Management to manage his personal budget and care package.
The Claimant resides with his parents in a 4 bedroom semi-detached house. His bedroom and bathroom are both on the first floor. The doorways have been widened to accommodate his wheelchair, and there are ceiling hoist and tracks to enable him to transfer around.
A through floor lift operates between a corner of the kitchen diner and into the Claimant's room, so that he is able to move around between the rooms easily. The first through floor lift was installed in 1997 and was replaced in 2015. The current through floor lift was installed in September 2022. The adaptations which have taken place have always been carried out and funded by the Defendant.
On 5 July 2021 an OT, Zoe Berry, visited the property. That visit appears to have followed a request for a DFG. That application had been made in light of difficulties that had been experienced with the through floor lift. The Claimant's case is that a lift failure can leave him stuck on the ground floor and unable to access his bedroom and bathroom. One failure occurred between 21 and 22 December 2020. On this occasion a manual transfer was required. That was apparently very distressing to the Claimant and his parents. More importantly, the manual transfer is said to have been dangerous. The Defendant does not appear to dispute that there are significant problems if the lift breaks down. It also does not appear to dispute the need for a contingency plan.
Ms Berry made recommendations in a report dated 23 August 2021. The report states that OT input had been sought to identify suitable replacement options for current adaptations ‘which are not working effectively to meet [the Claimant's] needs.’ The particular concern was said to have been that the through floor lift was breaking down. Because it took time to repair, the Claimant was denied access to essential facilities both within the home and the community. It was said that, among other things, that there was a need for ‘a suitable backup [to be] identified’.
The report of Ms Berry noted that the lift was working at the time of the visit. However, it was said that the Claimant's parents were anxious about transferring the Claimant should there be an issue with the lift. It was said that there had been previous difficulties. In particular, it was noted that there was a risk of injury when the Claimant was carried downstairs. The OT noted that the issue might be that the lift was out of warranty so that repairs had become the responsibility of the Claimant. The report suggested that those issues could be overcome with either a servicing agreement provided by the current lift provider or a replacement lift being installed also with a servicing agreement. The report noted that a stairlift could be provided to enable the Claimant to have full access to services in the event that a lift breaks down. The report ruled out an evacuation chair as a backup. No other backup was identified. The report considered the suitability of a stairlift and concluded it was accepted as an ‘emergency solution’.
It is implicit in this report that it is important that the Claimant move between floors. That is because there would have been no need to consider backups if that were not the case. The Defendant does not appear to dispute that it is important that the Claimant moves between floors.
On 27 August 2021 the OT report was sent to the Defendant's Home Improvement Team by the CCG.
On 15 September 2021 a meeting was held with the Claimant's parents and their legal representative, NJ Case Management and representatives from the CCG. It was concluded that Donna Hurley, Business Manager from the CCG, would arrange a meeting with the Defendant's Home Improvement Team to discuss the OT's recommendation for a stair lift.
On 24 September 2021, an email was received from Kalpana Singaravelou, Senior Practitioner OT in the Defendant's Home Improvement Team. This stated:
I have discussed with my manager regarding contingence (Stairlift) and the suggestion is that the TFL warranty/service agreement with 24/7 call out would be the contingence plan. Hence, stair lift recommendation as a contingence will not be progressed via DFG.
On 27 September 2021, a case manager from NJ Case Management (‘the case manager’) responded to Ms Singaravelou asking for, among other matters, clarification of the reasons why the stair lift could not be installed.
On 30 September 2021, Ms Singaravelou called the case manager and explained that the DFG ‘only covers’ one piece of equipment. Therefore, a new stairlift could not be funded in addition to a new through floor lift. Further, she stated that the service plan for the through floor lift would be sufficient as a contingency plan.
Following further correspondence, on 6 October 2021 the case manager emailed the CCG and the Defendant asking if the stairlift could be funded by a DFG instead of a new through floor lift. That proposal was contingent on the existing through floor lift being declared as being in working order. It was said that a callout plan for the through floor lift was not a sufficient contingency as there was no guarantee that the lift could be fixed immediately. For this reason a stairlift was recommended by the OT. This was reiterated in an email to Ms Singaravelou on 7 October 2021.
On 11 October 2021, a response was received from Themis Skouros, the Defendant's Group Manager for Environmental Health. This stated:
The client cannot have both a through floor lift and a stairlift as a contingency. The contingency is the warranty.
The case manager responded on 11 October 2021, again asking if the DFG could cover the stairlift instead of the through floor lift and reiterating that a warranty was insufficient contingency as the lift may not be fixed immediately.
On 19 October 2021, a further response was received from Mr Skouros stating:
From a grant perspective the OT recommendation is not reasonable or practicable, there is also an associated risk with using a stairlift because of the manual handling required. Whilst the through floor lift is working it has got to an age where the best option would be to replace the lift. I understand the family have had some issues with the Wessex lifts, given this we would look at alternative supplier/installer and ensure an adequate cover warrant is in place to mitigate the need for a ‘back up option’.
On 21 October Mr Skouros wrote stating that:
The role of the OT in the DFG assessment is to determine what is necessary and appropriate, and the role of the Home Improvement team is to determine what is reasonable and practicable. In order to marry the two objectives together to come to an agreement on away forward we have panel meetings for complex cases.
Rather than having this dialogue on email where we seem to be going around in circles can I suggest I arrange a panel meeting to discuss the points you have raised which will enable you to provide able the necessary feed back to the family.
The meeting proposed by Mr Skouros was convened on 12 November 2021 and was attended by Mr Skouros, Ms...
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