J and L, R (on the application of) v London Borough of Hillingdon, Court of Appeal - Administrative Court, December 21, 2017, [2017] EWHC 3411 (Admin)

Resolution Date:December 21, 2017
Issuing Organization:Administrative Court
Actores:J and L, R (on the application of) v London Borough of Hillingdon
 
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Case No: CO/3179/2017

Neutral Citation Number: [2017] EWHC 3411 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21 December 2017

Before :

THE HONOURABLE MR JUSTICE NICKLIN

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Between :

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Ian Wise QC (instructed by Hopkin Murray Beskine) for the Claimants

Matt Hutchings QC (instructed by the Borough Solicitor) for the Defendant

Hearing date: 13 December 2017

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JudgmentThe Honourable Mr Justice Nicklin :

  1. These judicial review proceedings essentially challenge the Defendant's refusal to provide housing to the Claimants. Permission was granted by Asplin LJ on 30 November 2017. She expedited the hearing. The urgency of the matter will become apparent.

  2. The First Claimant, J, is a 27-year-old single parent caring for L, her eight-year-old son. J has a history of depression resulting from prolonged periods of abuse when she was a child. She is heavily dependent upon her family (who live locally) for emotional and practical support.

  3. L, the Second Claimant, suffers from a range of disabilities including autism, global development delay, learning difficulties, long-standing ataxia and uncontrolled epilepsy. L receives Disability Living Allowance at the higher rate both for care and mobility. His ataxia means that he is very unsteady and he frequently trips and falls. L is prone to frequent and severe seizures without warning. His learning difficulties mean that his mental age is several years lower than his chronological age.

  4. L has poor sleep patterns and wakes up at least five times during the night. He has a prescribed wheelchair which he uses outside. This is required when he is tired, especially after a seizure.

  5. The Claimants currently live in a privately rented bungalow in the London Borough of Hillingdon. L's wheelchair does not fit through the doors of the bungalow and no adjustments have been made to the building to accommodate L. There have been ongoing disrepair issues with the property, including dampness and mould. The bungalow is also in an area, near Heathrow, that is due for major redevelopment. The land surrounding the Claimant's bungalow has been acquired for this redevelopment. The Claimants' landlord is engaged in negotiations to sell his land, and has informed that Claimants that he will require possession of the bungalow when the land has been sold. There is, as a result, no incentive for the landlord to address the issues of disrepair or to carry out any modifications to the Claimants' home.

  6. The bungalow is situated next to an industrial car park by the airport which is used by commercial vehicles. There is no fence or other protective barrier between the car park and the bungalow. Cars come and go 24 hours a day, seven days a week. In front of the bungalow is a busy road. There is no safe place for the L to transfer between his wheelchair and car. As a result of his autism, L has no sense of danger and, in the past, has run out in front of approaching vehicles on the busy main road. His delayed cognitive processing means that, if he does, he is not able to respond in time to an instruction to ``stop!'', thereby putting him in further danger.

  7. J made an application to be placed on the housing register under Part VI of the Housing Act 1996 on 25 September 2015. In that application, she stated that she was a single mother with a disabled son. She provided details of L's disabilities and also set out the problems with her current accommodation (disrepair, lack of adaptation for L's needs and the dangers associated with the proximity of the busy road).

  8. In late October 2015, at the Defendant's request, J completed a medical assessment form providing further details of the range of difficulties faced by L arising from his disabilities and the impact on the current accommodation on his medical condition and needs.

  9. On 16 November 2015, the Defendant made a decision that the Claimants had ``no identifiable housing need'' because it was stated that they were ``suitably housed'' at their current accommodation and that there were no concerns that the bungalow was overcrowded. On 3 December 2015, J asked for a review of that decision.

  10. On 14 December 2015, an occupational therapist from L's primary school, wrote to the Defendant's `Children with Disabilities Team' to request an assessment of L in his home in view of concerns over the suitability of the accommodation to meet his disabilities and associated needs and the safety of the environment immediately around the bungalow.

  11. On 3 February 2016, an occupational therapy assessment was completed (``the First OT Assessment''). The First OT Assessment identified similar issues that had been set out in the report of L's school's occupational therapist, including L's poor coordination, his tendency to lose his balance and his uncontrolled and unexpected seizures. The First OT Assessment also noted that L's poor sleep was being made worse by the bungalow's location adjacent to the car park and associated vehicle movements. It also raised concerns about the safety risks posed to L given the bungalow's location next to a busy road. In particular, it noted the risk to L when transferring from the house to the car (and back).

  12. The First OT Assessment made a series of recommendations:

    i) J required a future home that has access that is either level or adapted to facilitate access with a wheelchair;

    ii) J required a safe place to complete transfer into and out of a car;

    iii) J required level access to a shower (to reduce the risk of drowning during a seizure);

    iv) J required enough space at home for his specialist equipment;

    v) J would benefit from easy access to a toilet; and

    vi) J would benefit from an enclosed level garden to play and continue to develop.

  13. The Defendant considered the First OT Assessment but, on 11 April 2016, it maintained its decision that the Claimants had no identified housing needs and stated the following:

    i) in respect of the disrepair, that could be addressed by the private sector housing team of the Defendant;

    ii) J could use the bath as a shower by using an over-bath shower attachment;

    iii) there was nothing that the Defendant could do about the general noise levels, but if the noise amounted to anti-social behaviour, the Defendant's anti-social behaviour team could be contacted by the Claimants; and

    iv) even if the landlord was going to sell the property, he would need to obtain an order for eviction from a court. In the meantime, J could contact the Defendant's `Homelessness Prevention Team' for advice and could herself start looking for alternative privately rented accommodation.

  14. J did not have access to legal advice at the time of this decision.

  15. On 27 February 2017, J reapplied to join the Defendant's housing register as the family's accommodation situation remained difficult. She explained that L needed a level access property to enable easy transfer to and from the house when in his wheelchair. J again explained that the bungalow's location next to the busy car park posed a danger to L who, on occasions, had run into the road because he had little awareness of his own safety.

  16. The Defendant did not respond to J's renewed application. J then sought legal advice.

  17. On 3 April 2017, the Claimants' solicitors sent a letter before claim to the Defendant complaining that the failure to deal with L's urgent need for safe and appropriate accommodation was a breach of their duties under both Parts 6 and 7 of the Housing Act 1996. The letter also contended that the Defendant was in breach of the duties that it owed to L as a children's services authority and stated: ``The family desperately needs a suitable home, and support, both to assist them in managing their current home and long term, to ensure that [L's] multiple needs are met and that his mother has support with his care and her own needs''. The steps that the Claimants' solicitors required the Defendant to carry out were identified as follows:

    i) to determine the Claimant's housing register application, assessed in accordance with the Defendant's published scheme;

    ii) to confirm that the Defendant would immediately commence inquiries into J's Part VII Housing Act 1996 application (homelessness), and provide details of the steps that it would be taking to discharge its duty under s.188(1);

    iii) to carry out an assessment of L's need for services in accordance with s.17 Children Act 1989 and to confirm that the Defendant accepted that L was a `child in need' by reason of his disabilities;

    iv) to provide an effective plan, identifying L's needs and how it was proposed that they would be met; such plan should address the urgent accommodation needs as well as the need for other services and support;

    v) to confirm that the Defendant would now carry out a parent carer's assessment, and provide a time by which that would be completed; and

    vi) to ensure that, in relation to the steps identified in (i) to (v), that the Defendant complied with s.11 Children Act 2004 and ensured that there was liaison between the housing and children services departments of the Defendant as required by R (M and A) -v- London Borough of Islington [2016] EWHC 332 (Admin) [14].

  18. On 18 April 2017, the Defendant confirmed by letter that it determined J's application but had again assessed J and L as ``having no identified housing need'' because they lived in a two-bedroom bungalow which met their needs for two bedrooms and that they had access to a garden. The decision letter stated that the housing application had relied upon medical evidence and the First OT Assessment both of which had been considered previously and that there had been no change in J and L's circumstances.

  19. That same day, and apparently unaware of the negative...

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