R (Spink) v Wandsworth London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 18 March 2005 |
| Neutral Citation | [2005] EWCA Civ 302 |
| Docket Number | Case No: C1/2004/2276 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2005 |
[2005] EWCA Civ 302
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
MR JUSTICE RICHARDS
Lord Phillips of Worth Matravers, Mr
Lord Justice May and
Lord Justice Rix
Case No: C1/2004/2276
CO/3249/2004
Richard Gordon QC & Ian Wise (instructed by Messrs Irwin Mitchell) for the Appellant
Charles Béar QC & Clive Sheldon (instructed by D M H Stallard) for the Respondent
Steven Kovats (instructed by the Treasury Solicitor) for the Secretary of State
Lord Phillips, MR:
This is the judgment of the court
Introduction
This is an appeal from a judgment delivered on 20 October 2004, [2004] EWHC 2314, by Richards J, sitting in the Administrative Court. It raises questions as to the duties that local authorities owe in respect of the needs of those who are disabled. This is a topic that has vexed the courts in the past, leading to appeals to the Court of Appeal and the House of Lords in which those tribunals have been divided. The problems have arisen out of a maze of interacting statutory provisions, which have been subject to frequent amendment. The issues that arise on this appeal are as perplexing as some that have gone before and have led the Secretary of State for Education and Skills to intervene in order to join issue with a point of interpretation of the relevant legislation advanced by Wandsworth Borough Council ('the Council').
The background to the dispute is tragic. Mr and Mrs Spink have two sons ('the boys'), Henry, now aged 17 and Freddie, now aged 13. Each is very severely disabled. Mr and Mrs Spink look after them in their home, with the help of carers. That home needs a range of aids and adaptions ('the alterations'), in order to enable the boys to be cared for safely. They will be expensive. Mr and Mrs Spink contend that the Council are under a statutory duty to provide and pay for these alterations. The Council contend that whether they owe such a duty depends upon whether Mr and Mrs Spink can reasonably be expected to pay for the alterations themselves. In order to reach a decision on this question they asked Mr and Mrs Spink to provide details of their means. Mr and Mrs Spink contend that they cannot afford to pay for the alterations, but they declined to provide the Council with information about their means, contending that these had no bearing on the Council's duty. In this situation of impasse, Mr and Mrs Spink commenced, on behalf of their sons, judicial review proceedings. The issue directly raised in those proceedings, and which the judge determined, was whether the Council were entitled to take into account Mr and Mrs Spink's financial resources when deciding whether or not to provide and pay for the alterations. The judge answered this question in the affirmative.
In the course of argument before the judge, another issue was identified. If the Council proceed to provide and pay for the alterations, will they have a statutory right to recover from Mr and Mrs Spink part or all of the costs that they have incurred and, if so, in what circumstances? The Council contend that, if they provide and pay for the alterations, they will have a potential right to recover their expenditure from Mr and Mrs Spink. The boys' representatives contend that the Council will have no such right. The judge did not find it necessary to resolve this issue.
It is regrettable that judicial review proceedings have been initiated and pursued to the Court of Appeal in these circumstances. If Mr and Mrs Spink had disclosed their means to the Council, the Council might have agreed with them that they could not afford to pay for or contribute to the cost of the alterations, in which case the Council would almost certainly have agreed to carry them out without seeking to recover from Mr and Mrs Spink the cost of so doing. In that event there would have been no need to resort to the courts and to incur legal costs, which we suspect by now amount to as much or more than would have been required to carry out the alterations. We understand that the reason that Mr and Mrs Spinks were not prepared to disclose information about their means was that they sought to impose conditions of confidentiality upon the Council in respect of the information that were not acceptable to the Council, as they would have prevented the Council from verifying that information.
We were informed that, about two weeks before the hearing before us, Mr and Mrs Spink disclosed to the Council information about their means that they required should be treated as confidential. The Council have not yet had time to reach conclusions as to the impact of this information and of the terms under which it was disclosed. In the meantime, the following issues remain: (1) do the means of Mr and Mrs Spink have any bearing on the Council's duty to the boys? (2) Will the Council have any right to recover from Mr and Mrs Spink any of the costs incurred if the Council provide the alterations? It is desirable, both in the interests of the parties and in the interests of clarifying this area of the law, that we should resolve both these issues, and we shall do so. We have heard full argument on each. At the end of the day, no alterations can be made to Mr and Mrs Spinks' home without their consent. We would expect that before they give this they will wish to sit down with officials from the Council and work out what, if any, financial implications this will have for them. That discussion will be better informed if we succeed in clarifying the law.
The background facts
We shall adopt the judge's clear summary of the background facts, the accuracy of which has not been challenged.
The first claimant, Henry, is aged 17. He suffers from a neurotransmitter disorder and has a global learning disability. He is dependent upon support for all his functions and has to be moved in a wheelchair. He needs assistance with dressing, feeding and toileting. He needs support not only throughout the day, but also at night when, for example he has to be untangled from his bedclothes, turned over or given a drink. He attends a special school for children with severe difficulties. His most recent statement of special educational needs describes him as globally delayed in his development, with severe and complex learning difficulties which compound his physical needs, He is at the pre-verbal stage of development and has no speech sounds or words that convey meaning. He communicates his likes and dislikes through facial expression, laughing and crying.
The second claimant, Freddie, is aged 13. He was born with a diaphragmatic hernia and has an oesophageal restriction and other disabilities such as tightness of the limbs and restricted movement. He is also autistic. He needs help in dressing, toileting and bathing. He is unsteady on his feet and needs a wheelchair for longer outings. He requires adult supervision at all times. He attends the same special school as his brother. His most recent statement of special educational needs records that he usually speaks in single words. He enjoys sharing a book with an adult but is at the pre-reading stage. He is also at a very early developmental stage of drawing and cannot recognise his name in print of any of the letters of the alphabet. It is said that most of his skills appear to be around the 3–4 year level.
For some years Mr and Mrs Spink managed to look after the boys without any support from the local authority. More recently, the Council have been providing a package of personal care at a cost of over £60,000 a year.
Specialist reports have also identified a need for a range of aids and adaptations in the family home. These include a powered step lift outside the property, a powered step lift from the rear of the hall to the dining/kitchen area, an adapted bathroom with a walk-in bath or shower, a safe play area for Henry in the house, a downstairs toilet, and an adapted bed for Henry. The reports indicate that the lack of those various aids and adaptations gives rise to risks to the health and safety of the boys themselves, their parents and their other carers. As it is, both parents are said to suffer from lower back pain, which may be attributable to the amount of physical lifting and carrying that they need to do. As the boys have got older and bigger, so the problems and risks have increased.
There is no dispute that the boys' needs do include a substantial quantity of such aids and adaptations. A report in July 2004 for the defendant recommended certain items of equipment and a number of alterations to the home, although the Council have said that some of the points need further discussion and they have not yet reached a decision on what precisely is needed.
Sections 19 ff. of the Housing, Grants, Construction and Regeneration Act 1996, as amended ("the 1996 Act"), contain a scheme for the making of disabled facilities grants ("DFGs"). The scheme was first introduced in broadly its present form by the Local Government and Housing Act 1989 ("the 1989 Act"). Responsibility for DFGs lies with the local housing authority. An applicant for a grant must be the owner or tenant of the dwelling to which the works are to be carried out: section 19. The purposes for which an application for a grant must be approved include facilitating access by the disabled occupant to the dwelling and to rooms within the dwelling, making the dwelling safe, and like...
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