R (Ireneschild) v Lambeth London BC
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,LORD JUSTICE WALL,Lady Justice Hallett,Sir Peter Gibson,Lord Justice Dyson |
| Judgment Date | 16 March 2007 |
| Neutral Citation | [2007] EWCA Civ 234,[2007] EWCA Civ 41 |
| Docket Number | Case No: C1/2006/2145/QBACF,C1/2006/2145 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2007 |
[2007] EWCA Civ 234
Lord Justice Dyson
Lady Justice Hallett and
Sir Peter Gibson
Case No: C1/2006/2145/QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
MR JUSTICE LLOYD JONES
2006/2145
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Béar QC and Jon Holbrook (instructed by Sternberg Reed) for the Appellant
Richard Drabble QC and Kate Markus (instructed by Bindman & Partners) for the Respondent
Hearing date: 5 th February 2007
Background
The Respondent is the secure tenant of 78b Hubert Grove in Clapham. She has lived there since 1982. The Appellant local authority is the Respondent's landlord and the public body with social services responsibility for her. A climbing accident in 1992 left the Respondent permanently disabled. She cannot stand or move unsupported, she is in more or less constant pain and uses a wheelchair out of doors. She is doubly incontinent. She lives with her two adult sons in a two bed-roomed flat on the first and second floors of a large Victorian house. The flat 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.
The Respondent is particularly concerned about the risk of her falling on the stairs and the impact upon her mobility if she injures her arms, upon which she relies very heavily. She is also concerned about the risk to her sons of lifting her. Her incontinence gives rise to further anxiety. She considers that her needs require the local authority to make available to her the ground floor flat in the same house, which has been unoccupied for several years and is currently not habitable. The Appellant authority disagrees.
She sought judicial review of a number of decisions taken by the Appellants in relation to her care and accommodation needs. Her application for permission and her substantive application came on before Lloyd Jones J in September 2006. On 8 th September 2006, he held that the Appellants' community care assessment of the Respondent made in August 2006 (“the assessment”) was unlawful. At a subsequent hearing on 27 th September 2006 he quashed the assessment and ordered it to be carried out again within 28 days, subject to a stay pending any appeal.
Permission to appeal was granted following an oral hearing before Wall and Richards LJJ. Mr Béar QC, who represented the authority before us, informed us that the Appellants have pursued this appeal because they have real concerns about the implications of the judgment on the way in which they perform their statutory functions. It is said that there are important points of principle at stake.
History
It is necessary to rehearse the history in a little detail. In about 1996 the Respondent first applied for assistance from the Appellants via their housing waiting list. In October 1999 the Appellants completed an assessment pursuant to section 47 of the National Health Service and Community Care Act 1990. A care plan was produced. The author noted that there were concerns about the Respondent's accommodation and that contact should be made with the housing department. In 2003 the Appellants' officer, Mr David Rogerson, an occupational therapy expert, carried out an assessment. He made a recommendation for re-housing in accommodation without internal stairs, given the risk to Ms Ireneschild of falling on the stairs. Nothing happened. Solicitors acting on behalf of the Respondent asked for a community care assessment to be produced. This was produced in February of 2005. 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 property 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.”
Correspondence between the parties continued with renewed threats of litigation by the Respondent's solicitors. In March 2006, they commissioned a Housing Needs report from Ms Sharmin Campbell. Ms Campbell recorded that the Respondent told her “she has fallen in the past”. She described the way in which Ms Ireneschild makes her way around the flat using her upper limb strength. She stated that, given the lay-out of the flat and the internal stairs, Ms Ireneschild has problems with mobility every day, several times a day. Her difficulties are compounded when she is ill or tired. She is then dependent upon her sons who have to carry her up or down stairs. Ms Campbell opined that the Respondent is at “high risk of falling and serious injury each and every time she has to negotiate the stairs…… She would become completely house bound if she were to suffer injury to even one of her upper limbs.” Mr Drabble QC who represented the Respondent before us invited us to note the last sentence.
In her report, Ms Campbell also drew attention to the implications of the Manual Handling Regulations 1992 and concluded that the Respondent's sons were placing themselves at risk of injury every time they carried her. Ms Campbell took the view that this was a “serious breach” of the authority's duty towards “informal carers”. In fact, as she and Mr Drabble recognised, the Regulations, on their face, impose a duty on employers to provide a safe system of work for their employees. They do not impose a duty to provide a safe system of handling for informal carers. In any event, Ms Campbell recommended that the Respondent be re-housed as a matter of urgency.
At about this time, April 2006, a letter from Ms Ireneschild's doctor, dated 26 th January 2006 was also sent to the Appellants. He said:
“… it would be envisaged that for the foreseeable future Ms 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.
….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 the Respondent be “… 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.”
In the light of this material, the Appellant authority agreed to revise its assessment or to provide reasons by 18 th April 2006 why it declined to do so. There was no reassessment. Correspondence ensued between those representing the Respondent and the Appellant authority which referred, inter alia, to the question of whether or not there was any evidence that the Respondent had suffered any falls. Proceedings were commenced on 3 rd August 2006.
A further report from Mr Rogerson then came to light. It looms large in the consideration of this appeal and was described by the judge as short on text and analysis. To prepare the report, Mr Rogerson visited Ms Ireneschild at home on 31 st May 2006 with her case worker Ms Yvonne Williams. His report is dated the next day 1 st June 2006. Under the heading “Accommodation Type/Risk to Independence” he described the property and the presence of “mopstick rails”. Under the heading “Personal Care and Domestic Routines” he listed a series of topics he had discussed with the Respondent and or assessed for himself. In the “Discussed” column he stated that he understood there was “a history of falls”. He assessed her mobility indoors as “unsteady” and stated “she is at risk of falls”. Under the heading “Climbing Stairs” he said this:
“In my original report dated 27th January 2003 I was given to understand that stairs were managed using bilateral mopstick rails, a lot of the strain was taken via upper limbs and that the client was at risk climbing stairs. I note from the independent report by Ms Sharmin Campbell dated 7th March 2006 that: 'Ms Ireneschild is unable to negotiate stairs when she is ill or tired. She is then carried by her sons to the flat when tired after a night out: and to the bathroom/bedroom when she is ill'”.
He cited Ms Campbell's assertion that there was a serious breach of duty on the part of the authority and added:
“Please note that when I carried out my original assessment in 2003 I was not made aware of client being carried up the stairs by her sons on occasion. I now add this to my updated assessment and will act accordingly.”
Under the heading “Safety Abuse Neglect (Risk of Falls)” he said “client is at risk on stairs”. He also stated that the Respondent's carers “will be at risk if they carry client up/down stairs.” He wanted the question of “stair access” addressed as a matter of urgency. Finally, on a scale of “critical”, “substantial”, “moderate”, “low” to “not applicable” he assessed her eligibility against community care criteria. Health...
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