R M v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 19 February 2020 |
| Neutral Citation | [2020] EWHC 327 (Admin) |
| Docket Number | Case No: CO/3802/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2020 |
[2020] EWHC 327 (Admin)
Mr Justice Linden
Case No: CO/3802/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Edward Fitzpatrick (instructed by Javed Nazir Solicitors) for the Claimant
Mr Stephen Evans (instructed by London Borough of Newham) for the Defendant
Hearing dates: 30 January 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
In this application for judicial review the claimant alleges that the defendant housing authority is in breach of its duty, under section 193(2) Housing Act 1996 (“the 1996 Act”), to secure that suitable accommodation is available for him to occupy. He seeks a declaration to this effect together with a mandatory order requiring the defendant to provide him with suitable accommodation within a period of eight weeks.
The claim form was issued on 27 September 2019, together with an application for interim relief. Whilst expressing sympathy for the claimant's position, that application was refused by Mrs Justice Lieven on 27 September 2019. Lieven J directed that the defendant serve its acknowledgement of service within seven days and that the application for interim relief be dealt with at an on notice hearing.
In the event, the claimant's application for interim relief was not pursued when the matter came before Upper Tribunal Judge Markus QC, sitting as a Judge of the High Court, on 13 November 2019. Instead, having given permission, the Judge directed that there be an expedited hearing in January 2020. That hearing took place before me on 30 January 2020.
Mr Edward Fitzpatrick appeared for the claimant and Mr Stephen Evans appeared for the council. I am grateful to both of them for their assistance.
Anonymity Order
I have made an order pursuant to CPR 39.2(4) that the identity of the Claimant's daughter who is the subject of these proceedings should not be disclosed, whether directly or indirectly, in any report of these proceedings. She is under eighteen years of age and the evidence in the case includes sensitive personal information about her. She is therefore referred to below as ‘A’. The Order also specifically prohibits disclosure of the Claimant's address because this is likely to lead to the identification of A and I have not set out the address in this judgment. I appreciate that I could have gone further to prevent identification of A but this seems to me to be sufficient in the light of the Claimant's concerns and bearing in mind that his primary position was that he sought a more limited Order. I have also given liberty to apply.
The dispute
The claimant lives with his wife and four dependent children. One of his children, A, who is now aged 17, has various conditions and disabilities which impact on the sort of accommodation which the family requires. These include Hirschsprung disease, a genetic condition which causes her to be obese. She also has learning difficulties, sleep apnoea, recurring urinary tract infections and urinary incontinence. She is currently fully dependent on her mother for all of her personal care needs.
In January 2005, the defendant accepted that it owed the claimant the duty set out in section 193(2) of the 1996 Act. Thereafter, the claimant and his family lived in temporary accommodation in a three bedroomed house in Wanstead for approximately 13 years. No issue is raised as to the suitability of this accommodation but it is not conceded by the claimant that it was suitable, and I gather that unsuccessful applications for a transfer were made over this period.
It appears that the claimant and his family could get by in the Wanstead accommodation whilst A was a young child but the difficulties increased as she got older. By the end of 2017, A now being 15 years of age, her disabilities and the effect of them were such that the claimant and his wife considered that the family urgently needed to move. The claimant therefore made an application which was supported by evidence about A's needs including a letter, dated 8 November 2017, from a Contact and Assessment Worker who had undertaken a Common Assessment Framework assessment during a home visit to the family. She described the accommodation needs of the family, and particularly those of A.
On 19 December 2017, the claimant was notified by the defendant that alternative temporary accommodation in a four bedroomed house had been secured for the family. As is standard where accommodation is considered “suitable” for the purposes of the 1996 Act, the defendant's letter notified the claimant that this was its view, and informed him that the defendant considered that it had discharged its statutory duty to him. The letter also warned the claimant that if he were to refuse the offer his case would be closed and it informed him of his statutory right, under section 202 of the 1996 Act, to request a review if he disagreed with the defendant's decision.
The claimant did not agree that the alternative accommodation was suitable. In a letter to the defendant dated 24 December 2017 he particularly emphasised that, although the accommodation had four bedrooms, it did not meet A's needs:
“My daughter is in vital need of bariatric bathroom and toilet equipment; and disabled toilet and an Easy Access Walk in shower/bath for her own safety and hygiene (sic)….. Without the support in place you are neglecting her needs as a disabled child and she is at risk of falling and hurting herself, as she has done previously. She is unable to support herself or bathe independently without these.”
In the light of the consequences if he were to refuse the offer, however, the claimant and his family moved into this accommodation whilst exercising their right to request a review of the defendant's decision. That request was supported by a letter from a civil legal advice housing adviser at Shelter, dated 12 January 2018, which outlined A's disabilities and the deficiencies in the alternative accommodation.
A report, dated 2 February 2018, by Ms Patricia Brook, Paediatric Occupational Therapist, was also submitted in support of the claimant's request for a review. This included the following passages:
“Active postural/locomotor
[A] is independent mobilising and can negotiate the stairs. She needs full assistance for all her personal care needs at the present time, but could become independent with appropriate facilities and equipment….
Difficulties experienced at current property:
The downstairs toilet is not large enough for [A] to use. The bathroom upstairs is also too small to accommodate [A] and her personal care needs. [A] cannot use the bath. She has a bath board but again due to the length and width of the bath [A] is unable safely to use this and have a shower. The shower runs off the taps, so there is a high risk of scalding. The basin is extremely low, which again [A] cannot access. The toilet area is not large enough to accommodate a bariatric toilet frame..…..
Recommendations
[A] and her family would benefit from having a four bedroom property, to enable [A] to have her own bedroom with preferably ensuite wet room, as [A's] personal care needs are impacting on the family's use of essential facilities. This would need to be large enough to house bariatric equipment so [A] could come independent with her personal care needs.
Options available
The current property cannot be adapted to meet [A] or the family's needs. A three-bedroom property, which could be adapted to accommodate an extra bedroom and bathroom would be an option.”
By letter dated 22 February 2018 the defendant notified the claimant that following a recent medical assessment of A “we have awarded you emergency status and you are now registered on the Council's emergency housing list” in relation to the allocation of permanent accommodation pursuant to Part VI of the 1996 Act. The letter went on to say:
“This is in recognition of the fact that your property…..requires adaptations which either cannot be carried out or can be carried out but not within reasonable cost.
The property that is recommended for [A's] medical needs is on a ground floor maximum if un-lifted, or any floor with a lift, adequate heating, accessible bathing facilities with a level access shower, bariatric toilet and space for specialist equipment. We have also assessed that [A] should have her own bedroom.
This means that properties advertised as E+ should be suitable for you and you will only be able to bid for this type of property.”
The claimant was also told that his emergency status meant that he was entitled to place bids and that these bids would be given enhanced priority. The defendant also reserved the right to make a direct offer to him at any time regardless of whether he had bid for the accommodation which was the subject of the offer.
Shortly after this, on 27 February 2018, the claimant and his wife were notified of the decision of the defendant's Reviews Officer, Mr Terry Ohene, in relation to their request for a review. At paragraph 4 of his letter he said that he had considered a number of matters including “…relevant legislation, caselaw and the Code of Guidance for local Authorities”. He went on to say, at paragraph 5 of his letter:
“ Following careful consideration of all the relevant facts, law relating to your case, enquiries to the review and Newham Council's Temporary Accommodation allocation policy, I have concluded that the temporary accommodation provided to you under the Housing Act 1996 is not suitable due to your daughter's need for a...
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