R (Ireneschild) v Lambeth London BC
| Jurisdiction | England & Wales |
| Judgment Date | 08 September 2006 |
| Neutral Citation | [2006] EWHC 2354 (Admin) |
| Date | 08 September 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6469/2006 |
[2006] EWHC 2354 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Lord Justice Lloyd Jones
CO/6469/2006
MISS K MARKUS [MR J BURTON] (instructed by Bindmans) appeared on behalf of the CLAIMANT
MR J HOLBROOK (instructed by Sternberg Reed) appeared on behalf of the DEFENDANT
MR JUSTICE LLOYD JONES: This is an application for permission to apply for judicial review by Mrs Linda Ireneschild who seeks to challenge the legality of a number of decisions of the defendant authority, the London Borough of Lambeth. The claim form was filed on 3rd August 2006, an acknowledgment service was filed on 21st August and on 25th August Collins J gave leave to amend the claim form to take account of certain developments which had occurred since the commencement of the proceedings, in particular the production by the defendant authority of a community care assessment which was served with the acknowledgment of service. Collins J directed a hearing within 14 days at which the application for permission, and, if permission were granted, the substantive application could be heard together. The decisions challenged, as set out in the amended claim form, are, first, the ongoing failure of the defendant to provide services to meet the claimant's needs in accordance with her present assessment; secondly, the ongoing failure of the defendant to complete a lawful assessment as to the claimant's accommodation and care needs; and, thirdly, the ongoing failure the defendant to make arrangement for the provision of suitable accommodation for the claimant pending the completion of an assessment of her accommodation needs pursuant to section 47(5) of the National Health Service and Community Care Act 1990.
The claimant, Mrs Ireneschild, had in 1992 the great misfortune to suffer an accident, as a result of which she suffered serious back and neck injuries. As a result she lost the ability to stand and to move about unsupported. I am told that she is more or less in constant pain. She uses a wheelchair when out of doors. It is common ground that since September 2005 she has in an addition been suffering from urinary and faecal incontinence.
Since the accident she has continued to occupy a flat at 78B Hubert Grove where she lived before the accident. She lives there with her sons, who are now aged 24 and 19, who are her primary carers. The defendant is the landlord of the flat as well as being the public body with responsibility under section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act") for arranging the provision of community care services. The flat is a two bedroomed flat on split levels. It was created through conversion of a large Victorian house. It is accessed by steps leading from the street. Within the flat there are two further internal staircases, one of four steps and one of nine steps.
It is the claimant's case that she is unable to manage to move safely around the flat because of its arrangement on different levels. She says that she has good days and bad. On good days she is able to use her arms to help her move around by holding onto furniture. She says that she has suffered falls. She says that more often her legs buckle but she was is to catch herself with her arms and prevent a fall. She is clearly adept. She is a lady of considerable spirit and she has managed since the accident in this accommodation.
The claimant says that a particular concern is that if she does fall there would be very serious consequences. Further injury might render her wholly immobile. She is at the moment dependent on the strength of her upper body to remain independent. It is said on the behalf of the claimant that on bad days, and when she is weak or in more acute pain, she is dependent on her sons to help her and to move her: sometimes this involves lifting and dragging, sometimes semi-lifting. The problem of incontinence has given rise, it is said, to further anxiety. The need to move quickly to the lavatory in the flat has created the anxiety of the risk of further falls as a result.
In October 1999 an assessment was completed by the defendant authority pursuant to section 47 of the 1990 Act and a care plan was produced. That noted that there were concerns about the accommodation and that contact should be made with the housing department.
In 2003 the defendant's officer, Mr David Rogerson, an occupational therapy expert, carried out an assessment. He made a recommendation for rehousing.
Later, solicitors acting on behalf of the claimant asked for a community care assessment to be produced. That assessment was produced in February of 2005. There is a dispute between the parties as to the effect of that assessment. Under the heading "home environment, choice, control and finance" there appears a subheading "risk" and the following passage appears:
"The risk to Linda's independence is substantial. She stated that the lack of appropriate accommodation is putting a big strain on her relationship with her sons. Linda has also stated that this property was a family home that was divided into two maisonettes. Might it be suggested that a way forward would be to take the relevant steps to have the partition removed and the property to be returned into a family home. By undertaking this, it would meet Linda's housing need as the downstairs properly has all amenities on one level and enable her sons to have the upper part of the property which will enable them to continue in their caring roles. In the event that the above does not occur, Linda's current care arrangement is likely to break down and she will require extensive package due to high care need. However, it is recognised that this is Housing's decision."
The assessment of her individual needs concluded that the aggregate risk to her independence fell between the moderate and low categories of the eligibility criteria employed by the defendant authority for fair access to care services. However, it noted that these criteria could change to substantial in the future should her informal care arrangements break down.
The report also stated (page 291) that the claimant had stated that the lack of appropriate accommodation was putting a big strain on the relationship with her sons, and the statement was made by the author of that assessment that her needs could be substantial if her sons are no longer supportive to her. It is said on behalf of the defendant authority that the concerns which were addressed in that assessment were concerns as to the situation which would arise if the sons were no longer caring for the claimant. No care plan was produced following that assessment and that is said by the claimant to be a breach of duty.
In March 2006 a housing needs report was commissioned on behalf of the claimant. The report was produced by Miss Sharmin Campbell. Miss Campbell concluded that Miss Ireneschild is not able to stand, let alone walk, unsupported and that she has difficulty with her mobility. She also concluded that these needs are compounded when the claimant is ill or tired, that her needs then increase and she requires assistance with her mobility to get around in her flat. It records that Mrs Ireneschild had told the author that her sons have had to carry her up the stairs if she had been out for the night and was subsequently too tired to manage the stairs herself. Furthermore, her sons had to help her to get to the bathroom when she was ill. Miss Campbell concluded that access to the flat presented Mrs Ireneschild with great difficulty because of her mobility problem and this was more of an issue if she was tired and then she had to rely on her sons to carry her.
Miss Campbell also drew attention to the implications of the Manual Handling Regulations 1992 and concluded that the claimant's sons were placing themselves at risk from injury every time they carried her. It was the view of Miss Campbell that this was not permissible under the Manual Handling Regulations.
There was also submitted to the defendant authority at about this time, April 2006, a letter from Mrs Ireneschild's doctor, dated 26th January 2006. Referring to the nature of her disabilities, the doctor said that her gait was extremely unsteady and she was at high risk of suffering from falls. Referring to her medical condition, and in particular her incontinence problem, the doctor said:
"… it would be envisaged that for the foreseeable future Mrs Ireneschild needs to be in a situation in her accommodation which allows her to access the bathroom at short notice, taking into consideration her relatively poor mobility and unsteady gait."
As far as the prognosis was concerned, the doctor considered that:
"Her gait will continue to be unsteady and she will persist in having a high risk of falls which may increase as time progresses."
The doctor strongly recommended that she:
"… is placed in a ground floor flat with no stairs, that enables her to mobilise safely and minimise her risk of severe injury as a result of her previous and ongoing medical problems."
On 4th April 2006, having received this letter and the report of Miss Campbell, the defendant authority agreed to revise its assessment in the light of those matters or to provide reasons by 18th April why it declined to do so. There was in fact no reassessment produced thereafter, and, accordingly, the claimant commenced these proceedings on 3rd August 2006.
The defendant authority then produced a further...
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