R (Mooney) v The London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON |
| Judgment Date | 06 July 2006 |
| Neutral Citation | [2006] EWHC 1912 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 July 2006 |
| Docket Number | CO/10441/2005 |
[2006] EWHC 1912 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Jackson
CO/10441/2005
MR DANIEL KOLINSKY (instructed by Ole Hansen and Partners) appeared on behalf of the CLAIMANT
MR HILTON HARROP-GRIFFITHS AND MR JASON BRAIER (FOR JUDGMENT ONLY) (instructed by London Borough of Southwark, Legal and Democratic Services) appeared on behalf of the DEFENDANT
This judgment is in six parts, namely:
Part 1. Introduction.
Part 2. The facts.
Part 3. The present proceedings.
Part 4. The law.
Part 5. Is the Council in breach of duty under section 21 of the 1948 Act?
Part 6. Conclusion.
Part 1. Introduction
This is a claim for judicial review of the London Borough of Southwark's failure so far to provide accommodation which is suitable for the needs of the claimant and her sons. The claim is based principally upon section 21 of the National Assistance Act 1948 ("the 1948 Act"). However, as part of her alternative case, the claimant also places some reliance upon section 17 of the Children Act 1989. In this judgment, I shall refer to the defendant as "the Council". I shall refer to the National Health Service and Community Care Act 1990 as "the 1990 Act".
Under Part VI of the Housing Act 1996, the Council is required to have in place a scheme for the allocation of housing accommodation. The scheme which the Council operated up until 21 September 2005 is contained in a document headed "Allocations policy". I shall refer to this document as "the Housing Allocation Policy". The scheme which the Council has operated since 22 September 2005 is contained in a document entitled "Lettings policy".
Paragraph 3.3.2 of the Housing Allocation Policy provides as follows:
"3.3.2 Social Services Nominations.
Social Services priority nominations – cases referred from Social Services on an individual basis, possibly following a Community Care assessment. Inclusion in the category is dependent on—
i) the referral being accepted by the Housing Needs Manager under the joint Working Arrangements between two departments, and
ii) housing being deemed essential within a 6 month or reasonable period."
The Lettings Policy contains a provision to similar effect at paragraph 3.6.1.
That concludes my introductory remarks. It is now necessary to outline the facts.
Part 2. The facts
The claimant is a single parent, aged 52, and living in Southwark. She has three sons living with her, namely Liam, Conor and Callum. Liam is aged 17. He has just left school and, subject to GCSE results, he plans to start a three-year course at a college in Richmond. Conor and Callum are twins, aged 9, and attend a local primary school.
The claimant is disabled. She suffers from arthritis of the spine, neck and feet. After walking short distances, the claimant experiences pain and breathlessness. She is unable to negotiate stairs. The twins, Conor and Callum, have developmental and emotional problems. According to the claimant's first witness statement, they are now functioning like four year-olds. They both have moderate learning difficulties and behavioural problems. They have little or no sense of danger and need much supervision. Conor has some mental health problems and is incontinent during the night. Callum has sleeping problems.
Let me now turn to accommodation. The family home is Flat 23A, Brook Drive, London, SE11. This is a two-storey maisonette, which is owned by the Council and of which the claimant is sole tenant. There is one downstairs bedroom, which is used by the claimant. There are two bedrooms upstairs, one for Liam and one for the twins. Because of her disability, the claimant has never climbed the stairs of her maisonette and has never been into the two upstairs bedrooms.
In view of the claimant's disability, the present accommodation is most unsuitable, both for the claimant and for her sons. The claimant cannot supervise or care for Callum and Conor when they are in their bedroom. An undue burden of child care has been placed on Liam. Furthermore, because of their behavioural problems, Conor and Callum ought to be sleeping in separate rooms.
During May and June 2005, the social services department of the Council carried out community assessments of the claimant and her family, pursuant to section 47 of the 1990 Act. The assessments were thorough and the findings are set out in four reports, namely an assessment of Kathleen Mooney, a community care plan for Kathleen Mooney, a Children Act assessment of the children and a carer's assessment relating to Liam. These reports made a number of recommendations for alleviating the problems faced by the claimant and her sons. Unsurprisingly, one recommendation was that the twins should have separate bedrooms. Another recommendation was that the family should have new accommodation in which the claimant could access all rooms.
There were two ways in which the recommendations about accommodation could be fulfilled. First, by finding a four-bedroom flat with all rooms on one level; secondly by finding a four-bedroom maisonette in which it is possible to install a lift.
Following completion of the community care assessments, the social services department made a referral of the claimant pursuant to paragraph 3.3.2 of the Housing Allocation Policy, which was then current. The housing needs manager of the Council's housing department accepted that referral. On 12 August 2005, the claimant was registered in band 1 as needing a property with four bedrooms. On 22 September 2005, the Council's new Lettings Policy came into force in place of the former Housing Allocation Policy. The new Lettings Policy had similar provisions for social services priority nominations. The claimant retained her place in band 1.
Under the new Lettings Policy the procedure is that all available properties are advertised by the housing department once a fortnight. These advertisements appear on alternate Thursdays in a glossy magazine called "Southwark Homesearch". They also appear on the Council's website. A deadline is always specified by which bids for the properties advertised must be lodged.
Although the claimant has been in band 1 for almost 11 months, she has not yet obtained a suitable property. There appear, on the evidence, to be four reasons for this. First, a number of other persons with priority needs were also in band 1. They had been registered before 12th August and so took precedence. Secondly, not every four-bedroom dwelling on two levels is capable of being fitted with a lift. Thirdly, the claimant is not willing to accept a dwelling anywhere in the borough. Perfectly understandably, the claimant wishes to live near to her extended family. Other members of the family, particularly the claimant's brother, her eldest son and his partner provide considerable support and assistance. Furthermore, some areas of the borough are unacceptable because they are close to the claimant's former partner and members of his family. The claimant has previously suffered domestic violence at the hands of her former partner. The fourth and final reason for the delay is that, even within these constraints, the claimant has been overly selective in the properties which she has bid for (as her counsel conceded in his closing speech).
As a consequence of all of the above matters, the claimant, despite her priority nomination, has failed to obtain suitable accommodation over a period of some 11 months. Nevertheless, the claimant's position has improved during that period. The claimant is now in fourth place on the list. The three persons above her in the list have not made any bid since September 2005 and seem unlikely to do so in the near future. Thus, for all practical purposes, the claimant is now at the top of the list.
During 2005, there was correspondence between the claimant's solicitors and the Council's legal department concerning the provision of accommodation for the claimant and her family, and the applicability of section 21 of the 1948 Act. On 10 October 2005, the Council's legal department wrote as follows to the claimant's solicitors:
"I have now received instructions from my client department. Your letter of 13 September refers in its first paragraph to the Local Authority's Children Act Assessment as having concluded that the family 'needed an urgent need to suitable accommodation'. Please clarify which part of the assessment contains this conclusion. The Local Authority acknowledges that its assessments of your client's family under the Children Act and your client's own needs under the NHS Community Care Act 1990 recognise the desirability of your client's family transferring to an alternative property. However, neither of the relevant Social Services teams, namely the Physical Disabilities Team and the Referral and Assessment Team Children's District North has recommended that your client's family transfer to a more suitable property other than via the Housing Department's allocations policy. To that effect both teams arranged for a Social Services priority housing nomination to be submitted to the housing department.
I understand from discussion with my colleague, Janet Oduyoye, who is advising the Housing Department, that as a result of the Social Services priority housing nomination that your client is now at the top of the waiting list for transferring to another property.
As you will be aware from the Social Services assessments, your client and family...
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