R (Spink) v Wandsworth London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 20 October 2004 |
| Neutral Citation | [2004] EWHC 2314 (Admin) |
| Date | 20 October 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3249/2004 |
[2004] EWHC 2314 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/3249/2004
Mr Ian Wise (instructed by Irwin Mitchell) for the Claimants
Mr Charles B�ar QC (instructed by DMH) for the Defendant
The claimants are profoundly disabled boys aged 16 and 12. Their parents have been in dispute with the London Borough of Wandsworth about the care to be provided to them and the provision of aids and adaptations in their home. That has led to the present proceedings for judicial review. At a hearing in July, McCombe J refused permission in respect of the care issue but granted permission in respect of the aids and adaptations issue, which has now come on before me for substantive hearing. The central question for decision is whether the defendant local authority is entitled to take into account the parents' financial resources when determining whether it is necessary to provide aids and adaptations for the children pursuant to section 2 of the Chronically Sick and Disabled Persons Act 1970.
Background
The first claimant, Henry, is aged 16. 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 12. He was born with a diaphragmatic hernia and has an oesophagal 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 or any of the letters of the alphabet. It is said that most of his skills appear to be around the 3�4 year level.
The immense burden that all this places cumulatively on the boys' parents can readily be appreciated. It is dealt with in greater detail in witness statements from both parents and in some of the reports that have been placed before the court. I do not think it necessary to go into the detail for the purposes of this judgement, which is concerned with a narrow, though important, legal issue. But I should record my great sympathy for the parents and my admiration for what they have done in coping with the difficulties with which they have been faced.
For some years the parents managed to look after the boys without any support from the local authority. More recently, the defendant authority has been providing a package of personal care at a cost of over �60,000 a year. The adequacy even of that remains a matter of controversy, but, as I have already indicated, permission has not been granted to pursue that point in these proceedings.
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 does not appear to be any 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, though the defendant has said that some of the points need further discussion and it has not yet reached a decision on what precisely is needed.
That, however, is not the issue before the court. The main reason why no decision has yet been reached is the dispute between the parties as to whether the defendant is entitled to take into account the parents' financial resources in deciding whether it is necessary for the defendant to make the relevant provision. In order to explain the defendants' stance further, I must first describe the legal framework.
Legal Framework
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 matters: section 23. The amount of any grant is to be reduced where the financial resources of any relevant person, which includes any person responsible for a disabled occupant who is a child or young person, exceed an amount laid down in regulations: section 30 and the Housing Renewal Grants Regulations 1996, as amended. The result is that the income and assets of the claimants' parents are to be taken into account in determining any entitlement to a grant.
The claimants' parents applied to the defendant, as the relevant local housing authority, for a DFG over five years ago, but the application was not pursued after it became clear in discussions that, because of the means-testing provisions, it would not succeed.
The DFG scheme and the application under it are relevant primarily as background. The focus of the present case is another piece of legislation, section 2 of the Chronically Sick and Disabled Persons Act 1970 ("the 1970 Act"). It has been contended for some time on behalf of the claimants that the issue of aids and adaptations should be considered under that provision. The defendant now agrees, whatever its previous position may have been: for present purposes I do not need to decide on the submission for the claimants that the defendant considered this case for some years by reference to the DFG scheme and agreed only at the permission hearing in July to consider it under the 1970 Act.
Section 2 of the 1970 Act is concerned with the provision of welfare services by the local welfare authority (the local social services authority). It reads:
"2 (1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely �
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,
then, � subject � to the provisions of section 7(1) of the Local...
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