ZB v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Jason Coppel |
| Judgment Date | 07 March 2023 |
| Neutral Citation | [2023] EWHC 489 (Admin) |
| Docket Number | Case No: CO/2369/2022 |
| Court | King's Bench Division (Administrative Court) |
The King On the application of
and
[2023] EWHC 489 (Admin)
Jason Coppel KC
(sitting as a Deputy Judge of the High Court)
Case No: CO/2369/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Presland (instructed by TV Edwards) for the Claimants
Hilton Harrop-Griffiths (instructed by London Borough of Croydon Legal Services) for the Defendant
Hearing date: 18 January 2023
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.
Jason Coppel KC (sitting as a Deputy Judge of the High Court):
Background
This claim is one of a number of sets of proceedings brought by the Claimants (“ZB” and “DB”), who are profoundly disabled children aged 14 and 12 respectively, and/or their mother (“Ms Bell”) seeking to secure adequate and lawful treatment by way of housing, education and social care provision.
The circumstances of the family
The distressing circumstances in which the family has found itself were eloquently described by Hill J in another one of the claims, whereby Ms Bell complained of the inadequacy of housing provided by the London Borough of Lambeth (“Lambeth”) at 388 Lower Addiscombe Road, Croydon (that is, in the area of the Defendant (“Croydon”)). She stated, in R (Bell) v London Borough of Lambeth [2022] EWHC 2008 (Admin) (§§5–16):
“ The needs of the Claimant and her children
5. The Claimant is a single parent living with her 3 children, a boy currently aged 14, a girl currently aged 12 and a boy currently aged 2. She has been diagnosed with autistic spectrum disorder, attention deficit hyperactivity disorder, depression and anxiety, obsessive compulsive disorder and asthma.
6. The Claimant's older son [DB] and her daughter [ZB] have significant and profound disabilities. Both have neurological conditions, global developmental delay, learning disabilities, four limb motor disorder, epilepsy, variable heart block, the heart condition long QT syndrome and low muscle tone. They are both registered blind, use non-verbal communication, are incontinent, fed by tube and use wheelchairs. Each of them has respiratory vulnerabilities and sleep disturbance patterns.
7. [DB] has kyphosis (a curvature of the upper spine) and 50% migration in his right hip. This causes him considerable pain as he cannot lie on his right side and has difficulties being placed in a sitting position.
8. [ZB] has scoliosis (a curvature and twist of her spine), chronic rhinitis and recurring pneumonia. She requires home suctioning and oxygen saturation monitoring and is regularly admitted to hospital for respiratory illnesses. She was diagnosed with early puberty (at age 4) and takes regular hormones which affect her mood.
9. On 15 June 2020 Lambeth's occupational therapist, Sara Glassberg, noted that both children have high moving and handling needs, large equipment requirements, need hoisting for all transfers and are fully dependent on carers to meet all of their needs. She made the following recommendations for accommodation: (i) standard wheelchair property; (ii) essential amenities to either be on one level, or alternatively have the ability to have through floor lift installed; (iii) sufficient internal circulation space to allow wheelchair manoeuvrability; (iv) wet floor shower, or potential to have wet floor shower, or specialist bath and hoist installed; (v) front access to be level access, or ability to be adapted; (vi) the property to be of suitable design to support hoisting; and (vii) sufficient floor space and storage areas to support the use of the necessary equipment.
10. On 10 May 2021 Ms Glassberg set out in an email what she considered the “minimum level of suitability” for a property for the family. This email reiterated that both children require ground floor living as they could only access the upstairs if a lift was present. They also both need their own bedroom due to the large size and quantity of their equipment and the space required for their moving and handling needs.
388 Lower Addiscombe Road
11. On 24 August 2020 the Claimant applied to Lambeth for accommodation under the homelessness provisions contained in Part VII of the 1996 Act. Lambeth provided her with interim accommodation but determined that she was not homeless. The Claimant brought judicial review proceedings against Lambeth but these were resolved. On 11 November 2020 Lambeth provided the Claimant with accommodation at 388 Lower Addiscombe Road. This was intended to be interim accommodation for the Claimant but she still lives there.
12. On 10 December 2020, Lambeth accepted that it owed the Claimant the section 193(2) duty.
13. On 11 December 2020, Lambeth accepted that 388 Lower Addiscombe Road was unsuitable due to excessive damp. The email also referred to the delay in carrying out necessary repairs and the surveyor's view that the family would benefit from single floor, level access accommodation with an accessible bathroom for the children. The email said that Lambeth would seek to rehouse the Claimant and that suitable alternatives would be proposed in the near future.
14. Since December 2020, the damp at 388 Lower Addiscombe Road has progressively worsened and spread. This was confirmed at the re-inspection by Lambeth's surveyor on 18 October 2021.
15. The Claimant points to several significant issues with 388 Addiscombe Road which make it unsuitable accommodation for her and her children.
(i) It is not only damp, but mouldy and infested with mice. The heating is not working effectively. The property is on a road where there is a continuous flow of traffic exposing the family to significant traffic fumes if they open the windows. In letters dated 17 June 2020, 3 October 2020 and 1 September 2021, Dr Ronny Cheung, General Paediatric Consultant from Evelina London Children's Hospital, explained that mould, rising damp, pest infestation and poor environmental air quality will exacerbate the already vulnerable respiratory health of both the older children and put them at risk of further infections and hospitalisations in future. He therefore strongly supported the application by the Claimant to relocate to an area with less environmental pollution.
(ii) There is only one bedroom on the ground floor where the Claimant's daughter is located. The Claimant's older son is located in a bedroom on the first floor. There is no lift. He now weighs over 30 kg and there are significant safety risks to the Claimant in her carrying her son up and down the stairs safely. With his reduced mobility and bone-mineral density along with his previous fracture, he is also at increased risk of sustaining another fracture. This means the Claimant's older son is largely restricted to being in the upstairs bedroom and so rarely sees his sister, with whom he had a very close relationship, and the family cannot socialise together.
(iii) The Claimant's older son needs to be moved around every 15 minutes, but this is made much more difficult because the Claimant is having to look after children on different floors. He has developed pressure sores on his ear. The community nurse who attends to dress his bed sores has raised safeguarding concerns.
(iv) The bathroom is largely inaccessible to the children, meaning they cannot be bathed properly. This exacerbates their skin conditions.
(v) Both children require surgery, but this is being delayed due to the lack of suitable accommodation: the Claimant's son's hip surgery cannot move forward in his current housing given the difficulties in getting him up or downstairs; the damp at the property renders it unsuitable for any child, but particularly one in the post-operative period; and post-surgery recovery requires a very stringent manoeuvring and handling plan, which would be very difficult in the current property. These issues were set out in letters from Dr Fairhurst, Consultant in Paediatric Neurodisability at the Evelina London Children's Hospital dated 16 November 2021, Mr Fabian Norman-Taylor, Consultant Orthopaedic Surgeon at Great Ormond Street Hospital for Children, dated 1 June 2022 and an email from the lead nurse at Demelza Hospice, dated 8 June 2022.
(vi) Mr Norman-Taylor's evidence also confirms that further delays to the Claimant's daughter's surgery will cause deterioration in her condition and could make surgery significantly less effective.
(vii) Dr Cheung's evidence confirms that a lack of adequate space at the property will limit the ability of the Continuing Care and Occupational Therapy teams to help deliver mobility and developmental programmes for the children.
(viii) Because of the difficulties in moving the children, they have been confined to the property. They last left it in March 2021.
(ix) The children are unable to attend school. According to the Claimant's grounds in the Croydon proceedings, her daughter has not attended school since 12 November 2018 and her older son has not attended school since 11 March 2020. Some alternative education arrangements have been put in place through a small number of virtual lessons and music sessions each week, but this has been described in the Croydon proceedings as “minimal and unlawful” provision, which places further undue pressure on the Claimant alongside her caring responsibilities.
(x) The Claimant cannot leave the property herself unless she has sufficient carers available for a long enough period of time. That has meant that she and her younger son have only been able to leave the property 5 or 6 times since they moved there.
(x) The issues with the property are preventing both children from...
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